Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cbrnell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL « By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 296.M42 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017601489 A DIGEST OF ALL THE REPOETED DECISIONS OF THE SUPEEIOE COUETS, From 1884 to 1888 inclusive. TOOETHEE WITH A SELECTION FROM THOSE OF THE IRISH COURTS. BY JOHN MEWS, BABRIBTEB-AT-LAW. LONDON: SWEET AND MAXWELL, Limited, 3, CHANCERY LANE; STEVENS AND SONS, Limited, 119 AND 120, CHANCERY LANE ; 1889. THE REPORTS COMPRISED IN THIS DIGEST. BBPORTS. ABBREVIATIONS. COURTS. Aspinall's Maritime Cases CabaM& Ellis... Coltman... Cox's Criminal Cases Pox Irish Reports ... Justice of the Peace Law Journal . . . Law Reports . . . Law Times (N. S.) Megone Morrell Neville & Macuamara . . O'MaUey & Hardoastle Weekly Eeportev Asp. M. C. O.&E. ... Colt. ... Cox, C. C. Fox L. E., Ir. J. P. L.J. L. E. ... L. T. ... Meg. M. B. E.... Nev. & Mac. O'M. & H. W. E. ... All. Nisi Prius. Registration Cases. Central Criminal and Crown. Eegistratlon Csises. All. Cases under Companies Acts. Bankruptcy Cases. Eailway Commission. Election Petitions. All. ABBREVIATIONS. H. L., House of Lords. P. C, Privy Cov/neil. L.JJ. and L.J., Lords Justices, Lord Justice. L. C.*, Lord Chancellor: JJ. and J., Jiistices, Justice. M.E., ilaster of the Rolls. Ch. D., Cliancery Bimsion. Q. B. D., Queen's Bench Division. G. P. D., Common Pleas Division. Ex. D.. Exchequer Division. D.', Divisional Com-t. ' P. D., Prohate, Divorce and Admiralty Division. Mat., Matrimonial. Prob. or P., Probate, Ch., Chancery. V.-C. B., Vice-chancellor Bacon. C.J.B., Chiff Judge in Banltuptey . Q. B., QueeJi's Bench. Bk., Bankruptcy. C. C. E., Crown Cases Resei-ved. C. A., Court of Appeal. App. Gas., Appeal Cases (_Laiv Reports'). M. C, Magistrates' Cases. S. C, Same Case, S, P., Same Point or Principle, E., England. Sc, Scotland. Ir., Ireland. W. N., Weekly Notes (Law Reports'). h, R., Law Reports. S. J., Solicitor's Journal, L. T. Journ., Law Times' Journal. ^ Bigegt OF ALL THE CASES REPORTED Feom 1884 TO 1888 inclusive. ABATEMENT. Divorce — Death of Petitioner before Decree Absolute.] — A husband who had obtained a decree nisi for dissolution of his marriage died before the time for making it absolute had arrived: — Held, that the legal personal repre- sentative of the husband could not revive the suit for the purpose of applying to make the decree absolute. Stanhope v. Stanhope, 11 P. D. 103 ; 55 L. J., P. 36 ; 54 L. T. 906 ; 34 W. E. 446 ; 50 J. P. 276— C. A. Death of Parties in Actions.]- (Paeties). -See Peactice ABDUCTION. See CBIMINAL LAW., ABSTRACT OP TITLE. See VENDOR AND PUECHASBE. ACCIDENT. See NEGLIOENCE. ACCORD AND SATIS- FACTION. Contract by Creditor to take less than Sum due.] — ^An agreement between judgment debtor and creditor that, in consideration of the debtor paying down part of the judgment debt and costs, and on condition of his paying to the creditor or his nominee the residue by instal- ments, the creditor will not take any proceed- ings on the judgment, is nudum pactum, being without consideration, and does not prevent the creditor, after payment of the whole debt and costs, from proceeding to enforce payment of the interest upon the judgment. PineVs ease (5 Eep. 117 a), and Cwnber v. Whe judge has decided on a matter not within his discre- tion ; (2) when his assumed discretion has been exercised on wrong principles; (3) when some great loss wUl be occasioned by a clearly erroneous exercise of discretion. Oriental Banli Corporation, In re, 56 L. T. 868—0. A. When a winding-up order is made on two petitions, there is no rule which absolutely binds the judge making the order to give the carriage of it to the petitioner who presented the first petition. He has a discretion as to which of the petitioners shall have it. An order made in exercise of that discretion is an appealable one, but the Court of Appeal will not encourage such appeals. Ounning/tam See Innkbepek. Of Goods and Animals for Carriage.] — See Cabeieb. Involuntary Bailee — Duty of.] — There is no duty cast upon the recipient with respect to goods sent to him voluntarily by another, and unsolicited by the recipient. Howard v. Sarris, 1 C. & E. 253— Williams, J. BAKER. Sale of Bread— Delivery by Cart without Beam and Scales.] — The appellant, a baker, having received through his traveller an order from a customer for a quartern loaf, the manager of the baker's shop selected, weighed, and appropriated to the customer a loaf, which was then carried out in a cart and delivered to the customer, on credit, by a servant of the baker, without being provided with any beam and scales with proper weights :— Held, that the appellant was rightly convicted under 6 & 7 Will. 4, c. 37, s. 7, which enacts that every baker beyond certain metro- politan limits who shall "carry out bread for sale in and from any cart" shall be provided with a correct beam and scales with proper weights, in order that all bread sold by him may be weighed in the presence of the purchaser ; and in case any such baker shall " carry out or deliver any bread " without being provided with such beam and scales with proper weights, he shall be liable to a penalty. RUgway v. Wa/rd, 14 Q. B. D. 110 ; 54 L. J., M. 0. 20 ; 51 L. T 75 BANKEK. 76 704 ; 33 W. E. 166 ; 49 J. P. 150 ; 15 Cox, C. C. 603— D. Sect. 7 of 6 & 7 Will. 4, c. 37, provides that every baker or seller of bread, and every servant employed by such baker or seller of bread, who shall convey or carry out bread for sale in and from any cart, shall be provided with a beam and scales with proper weights, in order that all bread sold by any such baker or seller of bread, or his servant, may be weighed in the presence of the purchaser thereof : and in case any " such baker or seller of bread " or his servant shall carry out or deliver any bread without being provided with such beam and scales, every such baker or seller of bread shall be liable to a penalty. A customer bought three loaves in a baker's shop. The baker weighed the loaves in her presence, and subsequently, at her request and to oblige her, his servant carried them out in a cart and delivered them at her house, without being provided with any beam and scales : — Held, that the baker had not carried out or delivered the loaves as " such baker or seller of bread," and therefore could not be con- victed of an offence under s. 7. Daniel v. Whitfield, 15 Q. B. D. 408 ; 54 L. J., M. C. 134 ; 53 L. T. 471 ; 33 W. E. 905 ; 49 J. P. 694 ; 15 Cox, C. C. 762— D. BANKER. Liability in General. Lien. Customers' Accounts. Banh Notes. Savings Sanlts. Bank Boohs as Evidence.- bouds were payable to bearer, and in others the name of the obligee was left blank, and they were transferable, after the name had been filled in, by entry in the company's books. There was evidence that both classes of bonds were treated as negotiable securities transferable by delivery. B., with the consent of the appellant, gave these securities to M., a money-dealer, for the purpose of raising money. M. obtained advances 6om the respondent banks by depositing these secu- rities, together with others, having first filled up the blank transfers of railway stock. M. became bankrupt, and the banks claimed a right to hold the stock and bonds as security for the whole debt due from him to them. There was evidence that it was the custom of banks dealing with money-dealers to make advances to them on deposit of securities en bloc, without regard to particular interests : — Held, that, under the cir- cumstances, the banks could not be considered as holders for value without notice, and, as against the appellant, could not hold the certi- ficates and bonds as security for the whole debt due from M., but only for the specific advances made on them. Sheffield (JSarl) v. London Joint Stock Bank, 13 App. Cas. 333 ; 57 L. J., Ch. 986 ; 58 L. T. 735 ; 37 W. E. 33— H. L. (E.). (Documents). -See Evidence 1. Liability in Genebal. Estoppel — Negligence — Custody of Seal — Loss by unauthorised use of Seal — Proximate Cause of Lobs.] — The plaintiffs, a corporate body, left their seal in the custody of their clerk, who, with- out authority, affixed it to powers of attorney, under which certain stock in the public funds, the property of the plaintiffs, was sold. The clerk appropriated the proceeds. In an action in which the plaintiffs claimed that they were en- titled to the stock on the ground that it had been transferred without their authority by the defendants : — Held, on the authority of Bank of Ireland v. Trustees of Evans' Charities (5 H. L. C. 389), that assuming the plaintiffs had been negligent their negligence was not the proximate cause of the loss, and did not disentitle them from recovering in the action. Merchants of Staple of England v. Bank of England, 21 Q. B. D. 160 ; 57 L. J., Q. B. 418 ; 36 W. E. 880 : 52 J. P. 580— 0. A. Deposit by Money-dealer of Customer's Secu- rities—Custom—Negotiable Securities— Holder for Value without Notice.]— The appellant, who was associated with E. in a financial speculation, gave him, for the purpose of raising a loan, certificates of stock in a foreign railway, of which he executed transfers in bla,nk, and some bonds of foreign companies. Some of the I Duty as to Inquiry — Securities.] — The English executors of a deceased English owner of shares in an American company desired to be entered in the New York registry in respect of them to enable them to receive the dividends, and if necessary to sell. On the instructions of their broker they signed in blank a form of transfer and power of attorney, which was in- dorsed on the share certificates, and sent them to the broker in London to be forwarded to New York for registration. The broker fraudu- lently deposited the certificates with the defen- dant bankers as security for advances, and afterwards became bankrupt. A question then arose as to whether the executors or the banks were entitled to the certificates : — Held, that as the question depended on transactions inEngland, it must be decided by English and not by American law : — ^thatthe state of the certificates put the defendant banks on inquiry, and that the executors were entitled to the shares, and were not estopped from denying the title of the banks to them. Willidms v. Colonial Banh, 38 Ch. D. 388 ; 57 L. J., Ch. 826 ; 59 L. T. 643 ; 36 W. E. 625— C. A. A holder of shares " in trust " is not a manda- taire prite-uom and holds subject to a prior title on the part of some person undisclosed. Such . holding not being forbidden by the law of the colony, a transferee from such holder is bound to inquire whether the transfer is authorised by the nature of the trust. Bank of Montreal v. Sweeny, 12 App. Cas. 617 ; 56 L. J.. P. C. 79 : 56 L. T. 897— P. C. Loan to Customer — Transfer by Three Persons to secure Loan — Authority to Sell — Transfer to Nominees of Customer.]- G., a stock-broker, who was one of three trustees and acted as broker to the trust, proposed to his co-trustees to sell B. stock belonging to the trust and re-invest in N. E. stock. The three trustees then, on the 27th of January, 1882, executed a transfer of the B. stock for a nominal consideration to two persons who were officers of a bank of which G. was a customer. G. gave the transfer to the 77 BANKER. 78 bank as security for a loan by them to him, and the transfer was registered. G-., in February, 1882, paid off the loan, and on the 15th of February the bank transferred the stock to pur- chasers from (J., and, without giving any notice to G.'s co-trustees, allowed him to receive the purchase-money. He invested it in N. B. stock in his own name. In 1883 he sold the N. B. stock and misappropriated the proceeds. Shortly after the sale of the B. stock G. had given an account to his co-trustees shewing the sale of B. stock and a re-investment in N. E. stock, and in 1884 he rendered another account in which he represented the N. E. stock as still foiming part of the trust funds. In 1885 he absconded. The co-trustees remembered hardly anything about the transaction, but admitted the genuineness of their signatures to the deed of transfer : — Held, that the bank had occasioned the loss to the trust estate by allowing the purchase-money to come to the hands of G. who had no authority to receive it, and whom they had no sufficient rea- son for believing to have authority to receive it, and that the bank must therefore make it good at the suit of the co-trustees, although the co- trustees had been negligent in not seeing that the N. E. stock was registered in the joint names of the trustees. Magnus v. Queensland Na- tional Bank, 37 Ch. D. 466 ; 57 L. J., Ch. 413 ; 58 L. T. 248 ; 36 W. E. 577— C. A. Affirming 52 J. P. 246— Kay, J. Post Office Order cashed — Negotiable Instru- ment.] — The plaintifiEs banked with the defen- dants. It was the duty of the plaintiffs' secretary to pay all moneys received by him on behalf of the plaintiffs into the defendants' bank to the credit of the plaintiffs. The secre- tary without the knowledge of the plaintiffs kept an account at the defendants' bank. He paid into the defendants' bank to his own credit certain post-office orders belonging to the plaintiffs which the defendants subsequently cashed. The post-office regulations with regard to post-office orders provide that, when pre- sented for payment by a banker, they shall be payable without the signature by the payee of the receipt contained in the order, provided the name of the banker presenting the order is written or stamped upon it : — Held, that there had. been a. wrongful conversion of the post- office orders above mentioned by thp defendants ; and that the regulations of the post-office with regard to the payments of post-office orders pre- sented through bankers did not give to those instruments in the hands of bankers the cha- racter of instruments transferable to bearer by delivery so as to bring the case within the doctrine of Goodwin v. Roiarts (1 App. Cas. 476), and thus give the defendants a good title to the post-office orders independently of the authority given to the plaintiffs' secretary. Fine Art Society v. Union Bamh, 17 Q. B. D. 705 ; 56 L. J., Q. B. 70 ; 55 L. T. 536 ; 35 W. E. 114 ; 51 J. P. 69—0. A. 2. Lien. General — memorandum of Deposit.] — A cus- tomer deposited a policy of life assurance with his bankers, accompanied by a memorandum of charge to secure overdrafts, not exceeding a specified amount. In an action to administer the customer's estate i — Held, that the banker's general lien was displaced, and the charge was limited to the amount specified. Bowes, In re, Strathmore (^Ma/rV) v. Vane, 33 Ch. D. 586 ; 56 L. J., Ch. 143 ; 55 L. T. 260 ; 35 "W. E. 166— North, J. Deposit of Security by partner— Claim ■to apply to Firm's general Account.] — A partnership firm had an account with certain bankers, and A., the senior partner of the firm, had also a private account with the same bankers. The two accounts were treated as separate accounts by 1;he bankers. Both the accounts had been considerably overdrawn, and certain deeds had been deposited with the bankers by A. as security for the two accounts. An ex- tension of credit to the amovmt of 500Z. being required by the partnership firmfora short period, A., in the name of his firm, deposited the lease of his house as security for the temporary accom- modation. Some time later the firm's accoimt being above the limit agreed upon, it was closed. The lease of the house was then sold, and the proceeds were handed to the bankers. Sub- sequently A. was adjudicated bankrupt, and his trustees in bankruptcy brought an action against the bankers to recover the surplus of the proceeds of the sale after settlement of the overdraft on A.'s private account. The bankers alleged that the lease was deposited with them by A. in order to secure advances made to him upon the two banking accounts ; and they claimed, therefore, to retain the proceeds of the sale of the lease for the purpose of repaying both such advances : — Held, that the lease was deposited by A. with the bankers merely for the purpose of securing to them repayment of the particular overdraft of 500/. ; that the bankers had no such general lien on the proceeds of sale so as to entitle them to retain the surplus of such proceeds in respect of the firm's overdrawn amount ; and that the same must accordingly be refunded. Wolstenliolme v. Sheffield Union Banking Company, 54 L. T. 746 — C.A. Building Society — Overdrawing Account.] — See Building Society (Boerowing Powers). 3. Customers' Accounts. Sight to apply Proceeds to reduce Overdraft — Auctioneer.] — An auctioneer received moneys from a sale of live stock and paid them into his private account at the defendant's bank. His account was overdrawn to an amount not exceeding 2,5002., but under an arrangement which was then subsisting he was permitted to overdraw up to 2,500Z., and he had no suspicion at the time when he paid in such moneys of any intention on the part of the bank to close his account. The bank shortly afterwards closed the account, and applied the proceeds of the sale in reduction of the overdraft. The bank had notice that the moneys so paid in were sub- stantially the produce of the sale of stock. An action was brought by the plaintiEE on behalf of all the vendors at the sale, against the bank, to recover their respective purchase- moneys, less the auctioneer's commission : — Held, that the auctioneer paid the proceeds of the sale to his private account in the ordinary course of business, and was not guilty of a breach of trust in so doing, and , that therefore 79 BANKEE. 80 the plaintiff had no remedy against the bank. Marten v. Boole, 53 L. T. 946 ; ,34 W. E. 253— l^orth, J. Deposit for Special Purpose— Payment into another Account.] — Where a company's bank received a money deposit from an applicant for shares in the company, and placed it to a separate account kept for such deposits ; the bank having at the request of the company, and on receiving notice of allotment to the applicant of the shares in respect of which the deposit had been paid (which allotment was in fact invalid), transferred the deposit to the overdrawn general account of the company, with knowledge that a meeting had been held with the object of winding up the com- pany, and that its reconstruction was contem- plated, and in spite of notice from the applicant not to part with the deposit without his au- thority : — Held, that the bank was liable to repay the amount of the deposit to the ap- plicant. Greenwell v. National and Provincial £anh, 1 C. & E. 56— Denman, J. Cheques — Course of Business.] — Where a bank has, as a matter of fact, always treated cheques paid in by a particular customer as cash before ■clearance, it cannot, as against such customer, set up a usage entitling it to exercise a discretion as to whether each particular cheque should be so treated. Armfield v. London and Westminster £anh, 1 C. & E. 170— Cave, J. Dishonouring — Damages.] — Where bankers, owing to a mistake, dishonoured a cheque of a customer, given in course of business, ■which mistake was subsequently satisfactorily explained to the payee, but still the payee declined to deal further with the customer : — Held, in an action for damages against the bank, that- the customer could not recover damages for the loss of the payee's custom. Morris v. London and Westminster Banlt, 1 C. & E. 498— Day, J. Cashing Crossed Cheque with unauthorized Signature per pro.]— >Sse Bills of Exchange (Cheques). Guarantee — Current Account — Death of Surety — Appropriation of Payments.] — S. guaranteed the account of T. at a bank by two guarantees, one for 150Z., the other for 40M. By the terms of the guarantees the surety guaranteed to the bank '■ the repayment of all moneys which shall at any time be due from " the customer " to you on the general balance of his account with you ; " the guarantee was moreover to be " a continuing guarantee to the extent at any one time of " the sums respectively named, and was not to be considered as wholly or partially satis- fied by the payment at any time of any sums due on such general balance ; and any indulgence granted by the bank was not to prejudice the guarantee. S. died, leaving T. and another exe- cutors. The bank on receiving notice of his death, without any communication vrith the executors beyond what would appear in T.'s pass-book, closed T.'s account, which was overdrawn, and opened a new account with him, in which they did not debit him with the amount of the over- draft, but debited him with interest on the same, and continued the account until he went into liquidation, when it also was overdrawn : — Held, that there was no contract, express or im- plied, which obliged the debtor and creditor to appropriate to the old overdraft the payments made by the debtor after the determination of the guarantee, and that the bank was entitled to prove against the estate of S. for the amount of the old overdraft, less the amount of the dividend which they had received on it in the liquidation. Sherry, In re, London and County Banking Company v. Terry, 25 Ch. D. 692 ; 53 L. J., Oh. 404 ; 50 L. T. 227 ; 32 W. R. 394— C. A. Advances — Constrnctiou — Parol Evidence — Discounting Bills and Notes— Surety, Bights of— Giving Time,] — &., knowing that his son C, who was a stock-broker in London, required advances for the purpose of liis business, gave to a bank a letter of guarantee, undertaking to guarantee any advances made to C. to the extent of 1,000Z. After the death of Q., the bank sought to prove on his estate in respect of four items: — 1, a promissory note of C. to the bank for iiOl, dated the 30th August, 1880, at six months ; 3, a sum of 321., balance due on a bill of exchange drawn by D., and accepted by E., dated the 6th October, 1880, at six months ; 3, a promissory note for 490Z., of B. to the bank, dated the 18th October, 1880, at six months, and 4, 71. 6s. 6d., the overdraft of C.'s current account. The promissory note for iiOl. had been renewed more than once, and this note, and the renewals, and the bill of exchange had been placed to the credit of C.'s account with the bank while current, and transferred to the debit side of his account when due, discount being charged in cases of renewal to C.'s account. C. drew upon the bank to the full amount for which he was thus credited. C.'s name was not on the bill of exchange, but the bank cashed it on his guarantee, and the proceeds were placed to C.'s credit. The promissory note for 490Z. represented a note given to the bank by B. some years previously to the date of G.'s guarantee, the amount of which had been then advanced to C. No entry of this note or its renewals appeared in C.'s current account, although the amount of the discounts on it were charged : — Held, (1), that to aid in the construction of the guarantee, parol evidence was admissible of the circumstances under which it was given ; (2), that under the circumstances, the guarantee was a continuing guarantee, ex- tending to advances made after its date ; (3), that " advances " was not confined to cadi advances or overdrafts, but included the pro- ceeds of bills or notes discounted by the bank, and placed to C.'s credit ; (4), that the right of the bank to sue on bills and notes being sus- pended during their currency was not a giving of time within the rule which discharges a surety ; but that, whether each renewal was equivalent to a fresh and independent advance or not, the amount advanced by the bank to C. was within the guarantee ; (5), that the bank could not sustain against G.'s estate a claim upon the note for 490Z. Grahafme v. Grahame, 19 L. R., Ir.249— V.-C. 4. Bank Notes. Issue of— Penalties.]— By s. 11 of the Bank Charter Act, 1844, it shall not be lawful for any banker to " issue " any note payable on 81 BANKRUPTCY. 82 demand, except that any banker carrying on business as suci. on the 6th of May, 1844, and then lawfully issuing his own notes, may con- tinue to issue them under specified conditions ; and by s. 12, if any banker, entitled after the passing of the act to issue bauk notes, "shall cease to carry on the business of a banker," it shall not be lawful for him to issue such notes at any time thereafter. In 1880 a firm of bankers entitled to issue their own notes under the ex- ception in s. 11, sold their business to a limited liability company upon the following terms : — The company took ovei- the whole of the business as a going concern, and the goodwill, except and reserving to the firm the right to issue their own notes, but including in the sale and purchase such benefit of the issue as was thereby agreed to be given to the company ; the firm were to issue their notes in the same form as theretofore, but through the company's officers only, and might nominate those officers and make the re- turns required by statute through them : the company were to allow and pay the firm 21. per cent, interest on the amount of all notes from time to time in circulation : for the purposes of the issue only the firm might continue to use their accustomed name, but they were not to assign their rights, nor to take new partners for the purpose of continuing the issue without the consent of the company, nor to carry on the busi- ness of banking within a defined district without the like consent, except so far as related to the issue of their notes under the agreement : if the right of issue should at any time be taken away from the firm they were to pay any compensation they might receive to the company, unless the company should get an equal right of issue, in which case the firm might retain the compensa- tion : if the company acquired a right to issue their own notes, the firm's right of issue was to cease. When the business was taken over by the company, a large number of the firm's notes being in circulation, the amount of them was deducted from the purchase-money, and the notes, when presented for payment, were cashed by the company, and reissued by them. Notes in hand when the business was taken over were treated as cash lent by the firm to the company. Daily returns were made by the company shew- ing the number of the firm's notes in circulation, and twice a year the company paid 21. per cent, interest to the firm on the amount so ascertained. On an information against the firm and the com- pany for penalties in respect of their having issued the notes contrary to the provisions of the act :— Held, that the company had " issued " the notes within the meaning of s. 11 of the Bank Charter Act, 1844 ; that the firm, in issuing the notes, were not protected by the exception in s. 11, because after the making of the agreement they had " ceased to carry on the business of hankers " within the meaning of s. 12 ; and therefore that all the defendants were liable. Attorney- General v. BirUech, 12 Q. B. D. 605 ; 53 L. J., Q. B. 378 ; 51 L. T. 199 ; 32 W. E. SOS— D. 5. Savings Banks. Officer of Bank — Bight of preference — Eank- zaptcy Act — ^Administration of Estate in Chan- cery Division.] — The provision of s. 14 of the Savings Bank Act, 1863, by which a savings bank is enabled to obtain payment of a debt due to it from an officer of the bank in prefer- ence to the other creditors of the officer, is repealed by s. 40 of the Bankruptcy Act, 1883, so far as regards administration in bankruptcy, but not as regards the administration of an estate in the Chancery Division ; and s. 10 of the Judicature Act, 1875, does not incorporate the provisions of s. 40 of the Bankruptcy Act, 1883, into the rules of administration of an estate in the Chancery Division so as to take away such right of preference of a savings bank. WilUo/ms, In re, Jones v. Williams, 36 Ch. D. 573 ; 57 L. J., Ch. 264 ; 57 L. T. 756 ; 36 W. E. 34— North, J. In the administration of the insolvent estate of an officer of a savings bank in the Chancery Division, the bank is therefore entitled to pay- ment of a debt due to it in preference to the other creditors. But the court may, under the 125th section of the Bankruptcy Act, 1883, on the application of a creditor, order a transfer of the proceedings to the Court of Bankruptcy. li. BANKRUPTCY. I. Jurisdiction, 84. II. Oppicees op the Couet. 1. Registrars, 87. 2. Offioial Meceiver, 88. 3. Ti-ustees, 91. a. Appointment, 91. J. Eemoval, 91. c. Order to Account and Pay Money, 92. d. Actions by, 93. e. Liability for costs, 94. /. Other Points relating to, 94. III. Who may be Banketjpt, 95. IV. Act op Bankeuptct, 96. V. Dbbtoe's Summons, 101. VI. Bahkeuptct Notice, Petition and Receiving Oedee. 1. Parties to, 102. 2. Amount and Nature of Beit, 105. 3. Powers of the Court, 109. 4. Practice. a. In General, 111. i. Staying Proceedings, 113. c. Application to Eescind Order, 114. VII. Adjudication, 117. VIII. Peopeety. 1. What passes to Trustee. a. Leaseholds — Disclaimer; 119. J. Order and Disposition, 124. c. Property appropriated to meet Bills of Exchange, 127. d. Property held by Bankrupt as Trustee, 131. 88 BANKRVPTCY— Jurisdiction. 84 e. Salary and Income, 132. /. Materials being used by Bank- rupt in Execution of Con- tracts, 133. g. Of Married Women, 134. h. In other Cases, 185. 2. Prooeedmgg for Bisoovery and Protection of Property, 136. IX. Proof op Dbbts. 1. Dedts entitled to Priority, 139. 2. In respect of what Debts, HI. 3. Sy and against Particular Persons, 143. 4. Practice on Proof, 148. 5. Expunging Proof, 150. 6. Bejection of Proof, 151. X. Mutual Dealings — Set-Off, 152. XI. Invalid and Peotectbd Trans- actions. 1. Executions, 154. 2. Pistresses, 159. 3. Fraudulent Conveyances, 159. 4. Fraudulent Preferences, 161. 5. Assignments of Property, 164. 6. Otlier Dealings by Bankrupt, 166. 7. Dealings with Property by Agent, 168. XII. Composition, Liquidation and Schemes of Arrangement. 1. Under the Bankruptcy Act, 1883, 169. 2. Under Prior Statutes, 174. a. Liquidation, 174. b. Composition, 176. XIIL Composition Deeds, 178. XIV. The Discharge and Ee-opening Bankruptcy. 1. Discharge under the Bankruptcy Act, 1883, 180. 2. Diseliarge under Prior Statutes, 184. 3. Be-opening Bankruptcy, 185. 4. Effect of Discharge, 185. XV. Offences, 187. XVI. The Bankrupt, 187. XVII. Effect of Bankruptcy, 190. XVIII. Practice. 1. Generally, 193. 2. Staying Proceedings, 194. 3. Transfer of Proceedings, 196. 4. Evidence, 197. 5. Costs, 198. XIX. Appeal. 1. Jurisdiction, 201. 2. Parties, 201. 3. In what Cases, 202. 4. Notice of— Time for, 204. 5. Tlw Deposit — Security for Costs, 205. 6. Leave to Appeal, 206. 7. Costs, 207. 8. Otlu'r Points, 208. XX. Administration of Insolvent Estates in Bankruptcy, 209. I. JURISDICTION. Claims arising out of the Bankruptcy — Strangers.] — The jurisdiction conferred on the Court of Bankruptcy by sub-s. 1 of s. 102 of the Bankruptcy Act, 1883, is identical with that conferred on that court by s. 72 of the Bank- ruptcy Act, 1869. Where, therefore, there are confficting claims to any part of a bankrupt's property, between parties who are strangers to the bankruptcy, and in which the trustee in bankruptcy has no interest, the Court of Bank- ruptcy will decline to adjudicate upon the ques- tions at issue. Beesty, Ex parte, Lowenthal, In re, 13 Q. B. D. 238 ; 53 L. J., Q. B. 524 ; 51 L. T. 431 ; 33 W. E. 138 ; 1 M. B. E. 117— Cave, J. The bankrupt carried on business as a corn- merchant at Southampton, where his stores were under the charge of a manager. On the 8th of June the appellants, to whom the bankrupt was largely indebted for wheat then in his stores, were informed that the bankrupt was in difficulties, and thereupon arranged with the manager to repurchase the wheat on credit at a price exceeding 200Z. The wheat was accord- ingly delivered to them on the following day. This sale was unknown to the bankrupt, who on the 8th of June sent out by post notices of sus- pension, which were dehvered to the manager at Southampton and to the appellants on the following morning : — Held, that under s. 102 of the Bankruptcy Act, 1883, it was competent for the county court acting in bankruptcy to adjudicate upon a claim by the bankrupt's trustee for the return of the wheat by the appellants or payment of its value, for it must be taken to be " a claim arising out of the bank- , ruptcy." Scott, Ex parte, Hawke, In re, 16 Q. B. D. 503 ; 55 L. J., Q. B. 302 ; 54 L. T. 54 ; 34 W. R. 167 ; 3 M. B. E. 1— D. See, also, Ellis, Ex parte, Crowther, In re, 20 Q. B. D. 38 ; 57 L. J., Q. B. 57 ; 58 L. T. 115 ; 36 W. E. 189 ; 4 M. B. E. 305— D. Death of Dehtor — Effect of.] — A debtor having died two days after filing his petition : — Held, that the bankruptcy proceedings might continue as though the debtor were alive. Semble, that if under the above circumstances, the debtor's representatives make arrangements with the creditors, the court will use the discretion given to it by s. 108 of the Bankruptcy Act, 1883. Sharp, Ex parte. Walker, In re, 54 L. i. 682 : 34 W. E. 550 ; 3 M. B. E. 69— D. Where a debtor against whom a creditors' petition in bankruptcy has been presented dies before service of the petition upon him, there is no power under s. 108 of the Bankruptcy Act, 1883, or the Bankruptcy Rules, to dispense with service or to order substituted service of the petition, and the bankruptcy proceedings must necessarily be stayed. Hill, Ex parte, Easy, In re, 19 Q. B. D. 538 ; 56 L. J., Q. B. 624 ; 35 W. E. 819 ; 4 M. B. E. 281— C. A. 85 BANKRUPTCY— J-Mnsrfictzon. 86 High Court— Judgment Summons.]— The High Court has ' authority to issue a judgment sum- mons on a judgment of the High Court where the debtor does not reside within its bankruptcy jurisdiction. Moholson, Ex paiie, Stone, In re, 1 M. B. R. 177— Cave, J. Court ordering Prosecution of Bankrupt — Debtor's Petition.] — Where a bankrupt presents his own petition, a court exercising jurisdiction in bankruptcy has no power since the coming into operation of the Bankruptcy Act, 1883, to order the trustee to prosecute him for any of the statutable misdemeanours created by s. 11, sub-ss. 13, 14, and 15, of the Debtors Act, 1869. Wood, Ex parte. Burden, In re, 21 Q. B. D. 24 ; 57 L. J., Q. B. 570 ; 59 L. T. 149 ; 36 W. R. 896 ; 5 M. B. R. 166- D. Charging Order -whether made under Bank- ruptcy or Ordinary Jurisdiction — Power to Eeview.] — In an action in the Chancery Division, by one partner against another, for a dissolution of the partnership, judgment was given for a dissolution, and the appointment of a receiver of the assets of the partnership. Both the partners were afterwards adjudged bankrupt ; the action was transferred to the Queen's Bench Division in bankruptcy, and the judge having jurisdiction in bankruptcy made an order under 23 & 24 Vict. c. 127, s. 28, charging the costs of the plaintiff's solicitor on the funds in the hands of the receiver. Before this order was made, the landlord of the premises in which the bank- rupts had carried on their business had given notice to the receiver of a claim for rent due to him, but had not attempted to distrain. The judge was not informed of this claim before he made the order, and he subsequently made a further order by which he directed the receiver to pay the rent due to the landlord, and to pay the balance in his hands to the solicitor : — Held, that the charging order was not made by the judge in the exercise of his bankruptcy jurisdic- tion, and that he had consequently no power to rescind or vary it under s. 104 of the Bankruptcy Act, 1883. Brown, Ex parte, Suffield and Watts, In re, 20 Q. B. D. 693 ; 58 L. T. 911 ; 36 W. R. 584 ; 5 M. B. R. 83— C. A. Dehtor must have English Somicil.] — See post, col. 96. County Court — Order of High Court to Fay Costs — Payment by Instalments.] — Where the High Court has simply made an order for the payment of costs, or given judgment for the payment of a sum of money, a county court can, by virtue of the Debtors Act, 1869, s. 5, and the Bankruptcy Act, 1883, s. 103, sub-s. 4, enforce that order or judgment by directing payment of the amount thereof by instalments. A county court cannot, however, rescind or vary an order of the High Court for the payment of a judg- ment debt by instalments since in such a case the High Court has considered and adjudicated upon the question of the debtor's abUity to pay forthwith. Washer v. Elliot (1 C. P. D. 169) explained. Addmgton, Ex parte, Ives, In re, 16 Q. B. D. 665 ; 55 L. J., Q. B. 246 ; 34 W. R. 593 ; 3 M. B. R. 83— Cave, J. Alleged Fraudulent Deed — Question of Character — Large Amount involved.] — Section 102 of the Bankruptcy Act, 1883, defines the general powers of the courts in bankruptcy, and goes on to enact, " provided that the jurisdiction hereby given shall not be exercised by the county court for the purpose of adjudicating upon any claim not arising out of the bank- ruptcy, which might heretofore have been en- forced by action in the High Court, unless all parties to the proceedings consent thereto, or the money, money's worth, or right in dispute, does not, in the opinion of the judge, exceed in value two hundred pounds." A. was tenant under a lease to H. , who was also his mortgagee. In May, 1885, certain transactions were entered into between H. and A. with a view of assisting A., who was then in money difSculties. A. be- came bankrupt, and a motion was made in the county court by his trustee in bankruptcy to have these transactions declared fraudulent and void as against the trustee. The amount at stake was 13,700Z. On the hearing objection was taken that the county court had no juris- diction as the amount at stake was very large, and a question of character was involved. The county court judge decided that he had juris- diction, but adjourned the hearing to enable this appeal to be brought : — ^Held, on appeal, that aesuming the county court judge had jurisdic- tion, yet that he ought not to exercise it unless there were special circumstances showing him he ought to do so, and that here there were no such special circumstances. Hazlelmrst, Ex parte, Beswicli, In re, 58 L. T. 591 ; 5 M. B. R. 105— D. Consent to Jurisdiction — Mistake. ] — By a proviso to s. 102 of the Bankruptcy Act, 1883, it is provided that " the jurisdiction iiereby given shall not be exercised by the county court for the purpose of adjudicating on any claim, not arising out of the bankruptcy, which might heretofore have been enforced by action in the High Court, unless all parties to the proceedings consent thereto," &o. Consent to the jurisdic- tion was given in ignorance of the fact that an order for summary administration had been made : — Held, that the consent to the jurisdic- tion was vitiated by the fact that it had been given under a mistaken impression of facts not easily to be ascertained. Sergeant, Ex parte, Sandars, In re, 52 L. T. 516— D. Power to Bestrain Proceedings in High Court.] — Under the Bankruptcy Act, 1883, a county court sitting in bankruptcy has no power to restrain proceedings in an action in the High Court. , Reynolds, Ex parte, Burnett, In re, 15 Q. B. D. 169 ; 54 L. J., Q. B. 354 ; 53 L. T. 448 ; 33 W. R. 715 ; 2 M. B. R. 147— C. A. Question whether to be determined in Bank- ruptcy or High Court.] — See infra, Peacticb (Tkahsfbe of Pbocbedings). Jurisdiction of Judge to review Order of Registrar.] — The power given to the court by s. 104 of the Bankruptcy Act, 1883, "to review, rescind, or vary any order made by it," is only given to the court by which the order is in fact made. Where, therefore, an order dismissing a bankruptcy petition was made by the registrar of a county court : — Held, that the county court judge had no jurisdiction to review, rescind, or vary the registrar's order. Maugliam, Ex parte. 87 BANKKUPTCY— Oncers of the Cowrt. 88 'ham, In re, 21 Q. B, D. 21 ; 57 L. J., Q. B. 487 ;' 59 L. T. 253 ; 36 W. B. 846 ; 5 M. B. E. 152— D. Where, on the refusal of an application by the registrar, application was subsequently made to the judge sitting in bankruptcy to review the decision : — Held, that there was no power to accede to the request, and that in the event of the registrar declining to review his own decision, the proper course was by way of appeal to the Court of Appeal. Moore, In re, 2 M. B. R. 78— Cave, J. Power of Court to go behind Judgment.] — See post, cols. 110, 111. II. orncERS or the court. 1. Registrars. 2. Official Receiver. 3. Trustees. 1. EEGISTRARS. Jurisdiction — Fending Proceedings. ] ^ The jurisdiction which registrars in bankruptcy had by delegation or otherwise under the Bankruptcy Act, 1869 (32 & 38 Vict. c. 71), is preserved by 46 & 47 Vict. c. 52, s. 169, sub-8. 3, in respect of proceedings pending when the latter act came into operation on the 1st of January, 1884 ; and rule 264 of the Bankruptcy Rules, 1883, which provides for the exercise of their jurisdiction, is a valid rule, and is properly made pursuant to s. 127 of the Bankruptcy Act, 1883. Edwards, Ex pa,rte. Home, In re, 54 L. J., Q. B. 447 ; 2 M. B. R. 203— C. A. - — - Delegation of Judge's Authority.] — H. J. died in 1871, and application for letters of administration was made by C. and E. J. Large sums of money were required for the purposes of administration, which were paid to B. by C. and B. J., and B. paid 3,1602. to the Inland Revenue Office for probate purposes. B . J. was adjudicated a bankrupt in 1875, and, in 1878, B. applied for a return of the surplus. Upon an application to the registrar by the trustee in bankruptcy that the said moneys should be paid to him, it was objected that under the terms of the Bankruptcy Act, 1883, the registrars had no jurisdiction in pending business. The question was referred to the judge for decision : — Held, that the registrar had jurisdiction, and that the application had been rightly made to him and must be remitted to him. Jones v. CKeverton, 49 L. T. 745 ; 1 M. B. E. 17— Mathew, J. Duty of Registrar.] — It is the duty of the registrar to hear and decide those cases brought before him, and which he is not prevented from so deciding by any order of the judge or by the rules or statute. The registrar ought not to adjourn any such case for the purpose of its being heard before the judge unless there is good cause or the case presents points of novelty or difficulty. Poster, Ex parte, Webster, In re, 3 M. B. R. 132— Cave, J. It is the duty of the registrar to hear and determine an application made ex parte for an injunction, even though at the time of such application the judge in bankruptcy may be sitting. Brooks, In re, 3 M. B. R, 62 — Cave, J. Request from Foreign Court in aid- Order to hand over Books.] — An application for an order to hand over books and papers under s. 118 of the Bankruptcy Act, 1883, which pro- vides that every British court having jurisdiction in bankruptcy, or insolvency, shall be auxiliary to each other, ought to be made to the registrar and not to the judge in court. Although the registrar may in a case of difiBculty refer a matter to the judge in bankruptcy for his deci- sion, yet there is no authority for him without reason to delegate his work to the judge, and unless a, matter is especially reserved to the judge, or some difficulty, arises, the registrar ought to deal with it. Knight, Ex parte, Fir- ' ' In re, 4 M. B. R. 50— Cave, J. Apprenticeship Premium — Application for return of.] — An application under s. 41 of the Bankruptcy Act, 1883, for the return of an apprenticeship premium paid to the bankrupt as a fee, ought to be made to the registrar and not to the judge in court. Oould, Ex parte, Richard- son, In re, 35 W. R. 381 ; 4 M. B. E. 47— Cave, J. Jurisdiction of Judge over Order of Regis- trar.] — See ante, cols. 86, 87. Refusal to carry out Order of Court of Appeal — Procedure to compel Obedience.] — Upon appeal from a county court in a bank- ruptcy proceeding, the divisional court allowed the appeal, and ordered money, which had been paid into the county court to abide the result of the appeal, to be paid out to the appellant. The divisional court also gave leave to appeal to the Court of Appeal, but made no order for a stay of proceedings. The registrar of the county court having refused to pay out the money untE the time for appealing to the Court of Appeal had elapsed : — Held, that the refusal was unjusti- fiable, but that, the registrar being an officer of the county court, the divisional court had no jurisdiction over him personally to enforce com- pliance with the order. Croydon County Court (^Registrar"), Ex parte, or Brtwn, Ex parte. Wise, In re, 17 Q. B. D. 389 ; 55 L. J., Q. B. 362 ; 54 L. T. 722 ; 34 W. R. 711 ; 3 M. B. E. 174 — C. A. Fees— County Court — Discharge of Bankrupt — Consent Judgment for over £50.] — Where a county court grants a bankrupt his discharge subject to his consenting to judgment being entered up against him by the trustee for the balance of debts provable under the bankruptcy, the county court has jurisdiction under r. 240 of the Bankruptcy Rules, 1886, to enter up such judgment, although the amount exceeds 502. ; but, the rule being silent as to fees, the registrar is not entitled to any fee in respect of such judg- ment. Howe, In re, 18 Q. B. D. 573 ; 56 L. J., Q. B. 257 ; 35 W. R. 380 ; 4 M. B. R. 57— Cave, J. 2. OFFICIAL RECEIVER. Acting as Trustee — Power to sell Bankrupt's Property.] — Under the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), the official receiver, when acting as trustee in a bankruptcy in the interval between the adjudication and the appointment 89 BANKEUPTCY— 0/^cers of the Court. 90 of a trustee by the creditors, has power to sell the bankrupt's property, though it be not of a perishable nature. Turquand v. Board of Trade, 11 App. Cas. 286 ; 55 L. J., Q. B. 417 ; 55 L. T. 30— H. L. (E.). Affirming S. C, sub nom. Tiir- quand, Ex parte, Parkers, In re, 2 M. B. R. 158 — C. A. Power to Compromise.] — A debtor on 6th May, presented his own petition upon which a receiving order was made, and on 7th May the oflSoial receiver took possession of the debtor's property. On 30th June a compromise was entered into between the official receiver and two holders of bills of sale over the property of the debtor. On 9th July the debtor was adjudi- cated bankrupt, and on 23rd July the certificate of approval of the trustee in the bankruptcy was granted by the Board of Trade. The trustee subsequently applied to the court to set aside the compromise : — Held, that on its appearing that the official receiver had the permission of the Board of Trade to make this compromise, the application of the trustee must be refused. Singleton, Ex parte, Johnstone, In re, 2 M. B. R. 206— D. Business carried on — Bepayment by Trustee of Expenses.] — Where the business of a debtor is carried on by the official receiver, who makes payments out of his own pocket for the purpose, and a composition is then sanctioned, the right order for the county court judge to make is, that the official receiver shall forthwith deliver up possession of the debtor's estate to the trustee under the composition, and that the trustee shall reimburse the official receiver out of the first monies which come to his hand from the realisation of the assets. Board of Trade, Ex parte, Taylor, In re, 51 L. T. 711 ; 1 M. B. R. 264— D. Application to Court — In what cases.] — The court does not sit to assist the official receiver or the trustee in simple matters relating to the management of the estate, but it sits for a judi- cial purpose ; and where there is no question of law arising, there is no justification for coming to the court. Honygar, Ex parte, Mahler, In re, 1 M. B. R. 272— Cave, J. The official receiver must be prepared to under- take the proper responsibility of his position, and he has no right in a simple case to come to the court merely for information. lb. Cannot act as Solicitor in his own behalf.] — The effect of s. 116, sub-s. 2, of the Bankruptcy Act, 1883, which provides that no official receiver shall, during his continuance in office, either directly or indirectly, by himself, his clerk or partner, act as solicitor in any proceeding in bankruptcy, is not limited to cases of the official receiver acting as solicitor by himself, his clerk, or partner, for another person, or on an applica- tion for the benefit of the estate, but extends also to cases where the official receiver is acting as solicitor for himself and conducting a case on his own behalf. Official Becei'ver, Ex parte, Taylor, In re, 2 M. B. E. 127— D. Small Bankruptcy — Personal Liability for Costs.] — The official receiver, acting as trustee of an estate being administered in a summary manner under s. 121 of the Bankruptcy Act, 1883, on an unsuccessful motion by him was ordered personally to pay the costs of the re- spondent, with liberty to take the costs out of the estate, if any. Jenltins, Ex parte, Glanville, In re, 33 W. R. 523 ; 2 M. B. R. 71— Cave, J. Application — Evidence, ] — The official receiver, having reported to the registrar of a county court sitting in bankruptcy that the property of the bankrupt was not likely to exceed SOOl. in value, asked for an order for summary administration of the estate under s. 121 of the Bankruptcy Act, 1883 ; but the registrar refused to make the order required unless the official receiver would support his report by affidavit, assigning no other reason for refusal : — Held, on appeal, that the registrar was not entitled to require an affidavit in support of the official receiver's report, and that such re- ports were intended to be received by the court as prim§, facie evidence, and to be acted upon as such. Semble, that s. 121 gives a certain dis- cretion to the court, and that a refusal must be based upon reasonable grounds. Official Beeeiier, Ex parte, Somiilow, In re, 53 L. T. 155 ; 2 M. B. R. 124— D. Appointment of Beceiver and Uanager — Mortgage.] — A receiver and manager had been appointed on an ex parte application by the plaintiff in a foreclosure action under a mortgage of brewery premises. The mortgagor, the defen- dant, afterwards became bankrupt on his own petition. The official receiver opposed a motion by the plaintiff for the continuance of the original receiver and manager, contending that he ought to be substituted : — Held, that an order must be made confirming the previous appointment, and continuing the person then appointed as receiver of the rents and profits of the premises comprised in the mortgage, and as manager of the business, he to be at liberty to use any of the vats, fixed motive machinery, and other property comprised in the mortgage, but nothing else. Deacon v. Arden, 50 L. T. 584— Pearson, J. Special Manager — Appointment of.] — By s. 12 of the Bankruptcy Act, 1883, sub-s. 1, it is provided that the "official receiver of a debtor's estate may, on the application of any creditor or creditors, and if satisfied that the nature of the debtor's estate or business or the interests of the creditors generally require the appointment of a special manager of the estate or business other than the official receiver, appoint a manager thereof accordingly to act until the trustee is appointed, and with such powers (in- cluding any of the powers of a receiver) as may be intrusted to him by the official receiver." By s. 66 it is provided (inter alia), that the official receivers, besides acting under the general autho- rity and directions of the Board of Trade, shall also be officers of the courts to which they are respectively attached. Upon an appeal from a decision of the chief official receiver, refusing to sanction the appointment of a manager named by the creditors : — Held, that the court had no jurisdiction to int^ere with the discretion of the official receiver in this matter. Whittalter, In re, 50 L. T. 510 ; 1 M. B. R. 36— Cave, J. Appearing to oppose Discharge of Beceiving Order,] — See -post, col. 116. 91 BANKEUPTCY— Oncers of the Court. 92 Liability for costs.] — See Jenkins, Ux parte, sapra. On Appeals,] — See infra, Appeal, XIX. 3. TRUSTEES. Appointment. Removal. Order to Account and Pay Money. Actions by. Liability for costs. Other Points relating to. a. Appointment. Liquidation Petition.] — A trustee can be ap- pointed by the creditors under a liquidation petition, though more than six months have elapsed since the filing of the petition. Fenning, Ex paHe (3 Oh. D. 455), discussed. Credit Company, Ex parte, MoHenry, In re, 2i Ch. D. 353 ; 53 L. J., Ch. 161 ; 49 L. T. 385 ; 32 W. R. 47— C. A. The last clause of sub-s. 7 of s. 125, relates only to the effect of the appointment of a trustee under a liquidation after he has been appointed, and does not impose on the making of the ap- pointment any limitation similar to that which by s. 6 is imposed on the making of an adjudica- tion of bankruptcy, viz., that the act of bank- ruptcy on which the adjudication is founded must have occurred within six months before the presentation of the petition for adjudication. 2i. Objection to, by Board of Trade— Grounds for.] — The fact that a trusteee has been proposed by the brother of a bankrupt, that such trustee has previously voted in favour of a composition and scheme of arrangement of the debtor's affairs, and that no committee of inspection is appointed, will not justify the Board of Trade in objecting to the appointment of such trustee under s. 21, sub-s. 2, of the Bankruptcy Act, 1883, even though the majority in number of the creditors are de- sirous that such objection shall be made. Board of Trade, Ex parte. Garnet, In re, 1 M. B. R. 216 — Cave, J. When creditors acting under s. 21 of the Bankruptcy Act, 1883, have appointed a trustee of the property of the bankrupt, and it appears that the person so appointed is an accounting party to the estate, and that questions will arise between him and the estate which will render it difficult for him to act vrith impartiality by reason of the conflict between his own interests and his duty to the creditors, these circumstances will, as a general rule, justify the Board of Trade in objecting to the appointment under the powers conferred on them by sub-s. 2 of s. 21. Board of Trade, Ex parte, Martin, In re, 21 Q. B. D. 29 ; 57 L. J., Q. B. 384 ; 58 L. T. 889 ; 36 W. R. 698 ; 5 M. B. B. 129— Gave, J. b. Bemoval. Discretion of Registrar — "Cause shown."] — The power given to the court by sub-s. 4 of s. 83 of the Bankruptcy Act, 1869, to " remove any trustee upon cause shown," authorises the re- moval of one of several co-trustees without the removal of all. "Cause shovsm " does not mean only conduct amounting to fraud or dishonesty on the part of the trustee ; it is enough to prove conduct — such as vexatious obstruction of the realization of the estate in the interest of the debtor — which shows that it is no longer fit that the trustee should remain a trustee. Though the making of an order to remove a trustee is not a matter of pure discretion, and the Court of Appeal is bound to see that cause was shown in order to found the jurisdiction of the registrar, yet, if the facts are capable of two reasonable interpretations, the Court of Appeal will trust to the discretion of the registrar in determining which is the more reasonable interpretation of the two, and will not disturb his order for the removal of a trustee, he, from his acquaintance with the proceedings throughout, having far better means of judging than the Court of Appeal has. Newitt, Ex parte, Mansel, In re, 14 Q. B. D. 177 ; 54 L. J., Q. B. 245 ; 52 L. T. 202 ; 33 W. R. 142— C. A. Court Kestraining Creditors' Meeting for Pur- pose of.] — There is jurisdiction in banlmiptcy to restrain creditors from holding a meeting for the purpose of removing a trustee by resolution. Such a meeting was res&ained when notice of it was given by creditors interested in a large debt, which the trustee had obtained an appointment for moving to expunge. Sayer, Ex parte, Mansel, In re, 19 Q. B. D. 679;' 56 L. J., Q. B. 605 — C. A. c. Order to Account and Pay Money. After Discharge of Trustee. ] — A trustee under the Bankruptcy Act, 1869, who has obtained his statutory release and discharge under that Act, after the 25th of August, 1883 (the date of the passing of the Bankruptcy Act, 1883), is not thereby relieved from rendering an account to the Board of Trade of his receipts and payments as such trustee, if, on that date, he had in his hands any undistributed funds, although such funds may have been disposed of by a subsequent resolution of the creditors. Board of Trade, Ex parte, Oiudley, In re, 14 Q. B. D. 402 ; 33 W. R. 708 ; 2 M. B. R. 8— Cave, J. After Bemoval — Scheme of Arrangement.] — The Board of Trade has power to require a trustee appointed under a scheme of arrange- ment to transmit a verified account of all his receipts and payments, even though such trustee may have been removed from office; and, in case of refusal, the court will make an order against such trustee to enforce compliance with the requirements of the Board of Trade. Board of Trade, Ex parte, Rogers, In re, 35 W. R. 457 ; 4 M. B. R. 67— Cave, J. Order to pay over Funds.] — Upon an applica- tion on behalf of the Board of Trade, an order was made under s. 162 of the Bankruptcy Act, 1883, directing the trustees of an estate to pay over certain undistributed funds and dividends into the Bank of England. Board of Trade, Ex parte, Pearoe, In re, 1 M. B. R. 56 — Cave, J. Order for Account— Non-compliance.] — When the Board of Trade applies to the court under s. 102, sub-s. 5, of the Bankruptcy Act, 1883, to 93 BANKEUPTCY— 0#ce)-s of the Court. 94 enforce^,!! order made by the Board under s. 162, sub-s. 2, against a trustee to submit to them an account of receipts and expenditure, the court will in the first instance make an order that the trustee obey the order of the Board of Trade, but will not add to that order a conditional order for the committal of such trustee. Board of Trade, Hx parte, Margetts, In re, 32 W. K. 1002; 1 M. B. K. 211— Cave, J. Enforcing Payment of Money — Application to •what Court.] — An order having been made by a county court judge against a trustee in liquida- tion to credit the estate of the debtor with certain moneys, the trustee appealed to the bankruptcy judge, by whom the decision was substantially affirmed, and a special order was made as to costs, and as to the payments to be made by the trustee. The trustee having failed to comply with the order, an application was made to the bankruptcy judge to enforce the order : — Held, that the ap- plication should have been made to the county court judge. Comptroller, Ex parte, Thomas, In re, 3 M. B. R„ 49— Cave, J. d. Actions by. New Trustee appointed.] — When a trustee in bankruptcy suing in his official name is removed, and a new trustee appointed, the new trustee must obtain an order to continue the action, and give notice thereof to the other parties, under Ord.XVII. rr. 4, 5. Pooley's Trustee v. Whet- ham, 28 Ch. D. 38 ; 54 L. J., Oh. 182 ; 51 L. T. 608 ; 33 W. E. 423— C. A. Secnrity for Costs — Suing in Official Name — Insolvency.] — A trustee of the property of a bankrupt brought an action in his official name, his own name not being mentioned. The de- fendants moved for security for costs on the ground of his insolvency, and of his suing solely in his official name. Evidence was given that he had been bankrupt ten years previously, and had also compounded with his creditors four years before the action was brought : — Held, that the evidence of the insolvency of the plain- tifiE was insufficient ; and that the fact of his suing solely in his'official name was not a ground for ordering him to give security for costs. Whether a trustee in bankruptcy suing in his official name would, if insolvent, be ordered to give security for costs, qussre. lb. The court will not require security for costs to be given by a plaintiff who sues as the trustee in liquidation for the benefit of the estate, even though he be insolvent. Denston v. Ashton, (4 L. R., Q. B. 590) approved. Cowell v. Taylor, 31 Ch. D. 34 ; 55 L. J., Ch. 92 ; 53 L. T. 483 ; 34 W. K. 24— C. A. Discovery and Particulars.] — The court ordered that the defendant in an action brought by a trustee in bankruptcy of a -firm which had been adjudicated bankrupt before the passing of the Bankruptcy Act, 1883, should be allowed to obtain particulars from and deliver interroga- tories to the trustee, and that the action should be tried by a jury. Carvill, In re, 1 M. B. B. 150— Cave, J. e. Liability for Costs. Costs of Appeals.] — Where, in a case of legal difficulty, a trustee in a bankruptcy has obtained the decision of the court, and he appeals from such decision unsuccessfully, the order for costs will be made against him personally. James, Ex parte. Maiden, In re, 55 L. T. 708 ; 3 M. B. E. 185— D. Where the county court had refused to approve of resolutions for a scheme of settlement under s. 28 of the Bankruptcy Act, 1869, and the trustee appealed to the chief judge, who reversed the order, and the Court of Appeal finally restored the order of the county court judge, the trustee was allowed the costs of his application to the county court judge out of the assets, if any, but was ordered to pay the costs of the appeals to the chief judge and to the Court of Appeal. Strawiridge, Ex parte, Hiohman, In re, 25 Ch. D. 266 ; 53 L. J., Ch. 323 ; 49 L. T. 638 ; 32 W. R. 173— C. A. Bejection of Proof.] — The court, in reversing the decision of the trustee in a bankruptcy rejecting a proof, ordered him to pay the costs personally, being of opinion that he had acted unreasonably and improperly in rejecting it. Brovm, Mx parte. Smith, In re, 17 Q. B. D. 488 ; 8 M. B. R. 202— C. A. See Edm/imds, Ex parte. Green, In re, 53 L. T. 967— D. Adoption of Bankrupt's Defence.] — An inter- locutory order for an injunction and receiver having been made against the defendants in an action, they gave notice of appeal, and shortly afterwards became banlo-upt. An order was made for carrying on the proceedings against their trustee. The trustee gave notice to the plaintiff that he should not proceed with the appeal. Shortly after this the trustee entered an appearance and demanded a statement of claim. He declined to undertake to pay the costs of the appeal incm-red by the plaintiff before the notice that the appeal would not be proceeded with, and the appeal came on that the question as to the costs might be decided : — Held, that the appeal must be dismissed with costs to be paid by the trustee, for that having adopted the defence of the bankrupts he had. placed himself in their position as to the whole of the action, and could not reject part of the proceedings in it. Borneman v. Wilson, 28 Ch. D. 53 ; 54 L. J., Ch. 631 ; 51 L. T. 728 ; 33 W. R. 141— C. A. f. Other points relating: to. Affidavit of no Receipts — Duty as to Stamp- ing Affidavit.] — Where no money on account of the debtor's estate has come into the hands of a trustee, he must, at his own expense, provide the stamp for the affidavit of no receipts or pay- ments which is required to be forwarded to the Board of Trade in such case. Board of Trade, Ex parte, Rowlands, In re, 35 W. R. 457 ; 4 M. B. R. 70— Cave, J. Duty where Official Receiver's Account Un- satisfactory.] — When the trustee in bankruptcy is dissatisfied with the accounts rendered to him by the official receiver, he should make a report thereon to the Board of Trade pursuant to the BANKRUPTCY— TT/io may he Bankrupt. 95 249th rule of the Bankruptcy rules, 1883 ; and if the Board neglect or refuse to act in the matter, he should then apply to the court for directions under s. 101 of the Act. Fox, JSxparte, Smith, In re, 17 Q. B. D. 4 ; 55 L. J., Q. B. 288 ; 54 L. T. 307 ; 34 W. E. 535 ; 3 M. B. K. 63— Cave,- J. Duty as to Appealing.] — A trustee, to protect himself, should, before appealing, obtain the consent of the creditors to do so, and also obtain a guarantee from such creditors for his own pro- tection. James, Ex -parte. Maiden, In re, 55 L. T. 708 ; 3 M. B. R. 185— D. Payment of Money to Trustee under Mistake of Law — Bight to recover.] — The ordinary rule, as between litigant parties, that money paid mider a mistake of law cannot be recovered, does not apply to a payment made under such a mistake to the trustee in a bankruptcy. The trustee being an officer of the court, the court, when the mistake is discovered, will direct him to refund the money, if it is still in his hands ; . and, if it has been applied in the payment of dividends to the creditors under the bankruptcy, the court will direct the trustee to repay it out of other moneys coming to his hands, and applicable to the payment of dividends to the creditors. James, Exparte (9 L. E. Oh. 609), followed and extended. Simmonds, Ex parte, Carnae, In re, 16 Q. B. D. 308 ; 55 L. J., Q. B. 74 ; 54 L. T. 439 ; 34 W. E. 421— C. A. Belation back of Title — Adjudication after Liquidation Petition.] — See Sharp v. McSenry, post, col. 175. Title to Property.] — See post, Pkopbett, VIII. What Transactions are protected.] — See post, Peotectbd Tbansactions, XI. III. WHO MAY BE BANKBUPT. Lunatic — Leave to Committee.] — The court gave leave to the committee of a lunatic to file a petition in bankruptcy under s. 4 (f) of the Bankruptcy Act, 1883, on behalf of the lunatic upon evidence that it would be for the benefit of the lunatic that he should be made a bankrupt, and that the creditors were willing to make him an allowance. James, In re, 12 Q. B. D. 332 ; 53 L. J., Q. B. 575 ; 50 L. T. 471— C. A. Married Woman — Separate Estate — ITon- Trader.] — A married woman, possessed of separate estate, but not carrying on a trade separately from her husband, is not subjected to the operation of the bankruptcy laws, and cannot commit an act of bankruptcy under s. 4 of the Bankruptcy Act, 1883. Coulson, Ex parte, Gardiner, In re, 20 Q. B. D. 249 ; 67 L. J., Q. B. 149 ; 58 L. T. 119 ; 36 W. E. 142 ; 5 M. B. E. 1 — D. Medical Practitioner — ' ' Trader. ' ' ] — A medical man practising as a general practitioner dis- pensed medicines to his patients but charged by the visit irrespectively of the medicine supplied, which was covered by the charge for the visit : — Held, that he was not a trader in drugs within the meaning of the Bankruptcy Act, 1869. Sanee v. Harding, 20 Q. B. D. 732 ; 57 96 L. J., Q. B. 403 ; 59 L. T. 659 ; 36 W. E. 629 - C.A. Domieil of Debtor.]- Sub-s. 1 (d) of s. S of the Bankruptcy Act, 1883, enacts that a creditor shall not be entitled to present a bankruptcy petition against a debtor unless (inter alia) "the debtor is domiciled in Bug- land : " — Held, that this must be taken to mean domiciled in England, as distinguished from Scotland or Ireland. Cimningham; Ex parte, Mitcliell, In re, 13 Q. B. D. 418 ; 53 L. J., Ch. 1067 ; 51 L. T. 447 ; 33 W. R. 22 ; 1 M. B. E. 137— C. A. Onus of Proof.] — The anus is, in the first instance, on the petitioning creditor to prove the domicil, though he may adduce such prima facie evidence as will throw the burden of disproving the domicil on the debtor. But the mere fact that the debtor bears an English name, and is an officer in the British army, does not raise any presumption that his domicil is English as dis- tinguished from Scotch or Irish, inasmuch as his domicil of origin might have been Scotch or Irish, and in either of those cases he would not by en- tering into the British army have lost his domicil of origin. Yelverton v. Telverton (1 Sw. & Tr. 574), and Brown v. Smith (15 Beav. 444), ap- proved and followed, lb. The onus is on the petitioning creditor to prove that the debtor's domicil is English, as required by s. 6, sub-s. 1 (d), of the Bankruptcy Act, 1883, and that his residence has been such as to give the High Court jurisdiction under s. 95. But, if there is no reason to suppose that the debtor will dispute that his domicil is- English, or that the petition is presented in the right court, the petitioning creditor need not in the first instance adduce evidence of either of those facts, Otmningham, Ex parte (13 Q. B. D. 418), explained, Same, Ex parte, Same, In re, 16 Q. B. D. 522 : 54 L. T. 662 ; 3 M. B. R. 33 ^C. A. Debtor ordinarily residing in England.] — Where a debtor who was not domiciled in nor had a dwelling-house or place of business in England, had for eighteen months previous to the presentation of a bankruptcy petition against Mm, a room at an hotel in London, which he paid for continuously during that time, and was treated as an ordinary resident there : — Held, that the debtor had " ordinarily resided in Eng- land," within the meaning of s. 6, sub-s. 1 (d), of the Bankruptcy Act, 1883, and that the creditor was entitled to present a bankruptcy petition against him. Reynolds, Ex parte, Norris, In, re, 5 M. B. E. Ill— C. A. IV. ACT OF BANKBUPTCY. "Eemaining out of England"— Domiciled Englishman residing Abroad.] — A domiciled Englishman went, in 1876, with his family, to reside in France, where he took a house. ' He was not then being pressed by any creditors in England. For a period of fourteen months in 1877 and 1878 he was in England, carrying on the business of a newspaper which he had pur- chased, and he then had a furnished lodging in London. During that period he retained his- house in France, and his wife and family lived 97 BANKRUPTCY— ^ct of Bankruptcy. m it. During the same period he contracted a debt for costs to a solicitor in London. At the end of the fourteen months he discontinued the business, and went back to his residence in France. In 1880 he, with his family, occupied for nine months a furnished house in England, his house in France being let furnished ; at the end of the nine mouths he returned to that house. He then continued to reside there, paying occasional visits to England. During one of these, visits he accidentally met the solicitor, who asked him why he had not paid his debt, and he answered that his newspaper speculation had left him with a number of claims, and he thought if he kept abroad he should be able to settle them more easily. The solicitor presented a bankruptcy petition against the debtor, alleging as an act of bankruptcy that he had remained out of England with intent to defeat or delay his creditors : — Held, that as the debtor was remaining out of England at his own permanent residence abroad, no intent to defeat or delay his creditors could be imputed to him from that circumstance alone, and that the con- versation with the petitioning creditor was not sufficient to prove such an intent. Brandon, Ex parte. Trench, In re, 25 Ch. D. 500 ; 53 L. J., Gh. 576 ; 50 L. T. 41 ; 32 W. S. 601— C.A. Intent to Defeat or Delay Creditors.] — In January, 1886, the debtor, whose business was connected with Central America, called on his banters and informed them that he was about to visit that country and obtained from them an advance of 2,00OZ. The money was not repaid, and in July, 1886, a circular was sent to the creditors by the debtor's solicitors stating that he was in difficulties and calling a meeting of creditors. The creditors resolved that the debtor should be requested to stay in America to realise his assets there, and a telegram was thereupon sent to him by his solicitors to that effect. No communications having arrived from the debtor, and his solicitors having declined to accept service of a writ, it was ascertained that the debtor's London office had been closed, and in September, 1886, the bank presented a petition : — Held, that the object for which the creditors accorded permission to the debtor to remain in America was in order that he might realise his assets ; that the conduct of the debtor in not communicating with the creditors, and also in respect of the non-acceptance of service of the writ, afforded ample evidence of an intention to stay abroad for the purpose of defeating his creditors within the meaning of s. 4, sub-s. 1 (JC), of the Bankruptcy Act, 1883 ; and that the court was right in making a receiving order. Ckunvpbell, Ex parte, Campbell, In re, 4 M. B. E. 198 — D. And see preceding case. "Keeping House."] — Where a debtor keeps house and denies himself to a creditor, though not with the intention of defeating him, but rathier with the view of gaining time for the purpose of paying his creditors, he delays him and commits an act of bankruptcy within the meaning of the provisions of the Bankruptcy Act. Richardson V. Pratt, 52 L. T. 614— D. " Departing from Dwelling-house " — Intent to Belay and Defeat Creditors.] — On March 8th the debtor, who was a farmer, instructed an 98 auctioneer to sell off all the stock, furniture, and effects on his farms, and the sale was advertised to take place on March 16th and 18th, the ad- vertisements stating that the debtor was leaving the neighbourhood. On March 15th a creditor, having heard of the sale, wrote to the debtor, and on tfie same day another creditor served the debtor with a wi-it. On March 16th the debtor departed from his house but left his brother at the farm, who superintended the conduct of the sale, and informed the auctioneer that letters addressed to him would reach the debtor. On March 17th the debtor wrote to the first-men- tioned creditor stating that he would call and explain matters, but did not do so. A petition was subsequently presented, the act of bank- ruptcy alleged being that the debtor had departed from his dwelling-house with intent to delay and defeat creditors ; but the county court judge refused to make a receiving order : — Held, that the debtor was not bound to stay on the farm while his effects were being sold ; that he left his brother as his representative, and no evidence had been given to show that if inquiries had been made as to the debtor they would not have been answered ; and that as the county court judge had come to the conclusion that there was no intention to defeat creditors, the court would not interfere with his decision. Foster, Ex parte, Woolstenholme, In re, 4 M. B. E. 2B8 — D. Onus of Proof.] — A petitioning creditor, who alleges that his debtor has committed an act of bankruptcy, by departing from his dwell- ing-house with intent to defeat and delay his creditors, is boimd to show that the debtor is alive and in some other place. Geisel, Ex parte, Stanger, In re, 22 Ch. D. 436 ; 53 L. J., Ch. 349 ; 48 L. T. 405 ; 31 W. E. 264—0. A. "Notice of Suspension of Payment" — Verbal Notice.] — A notice by a debtor that he has sus- pended, or that he is about to suspend, payment of his debts need not, in order that it may con- stitute an act of bankruptcy, be in writing. It is sufficient if a verbal statement to that effect be made by the debtor to one of his creditors. Nicholl, Ex pa/rte. Walker, In re, 13 Q. B. D. 469; 1 M. B. E. 188— D. Compromised on appeal, W. N. 1884, 222. An oral statement made by a debtor to a cre- ditor that he is unable to pay his debts in full, is not a notice that he has suspended, or is about to suspend, payment of his debts, so as to constitute an act of bankruptcy within sub-s. 1 (h) of s. 4 of the Bankruptcy Act, 1883. Such a notice may be given orally, but it must be given formally and deliberately, and with the inten- tion of giving notice. Oastler, Ex parte, Eried- lander. In re, 13 Q. B. D. 471 ; 54 L. J., Q. B. 23 ; 51 L. T. 309 ; 33 W. E. 126 ; 1 M. B. E. 207 —C.A. By s. 4, sub-s. 1 (h), of the Bankruptcy Act, 1883, it is provided tliat a debtor commits an act of bankruptcy if he gives notice to any of his creditors that he has suspended, or that he is about to suspend, payment of his debts. A debtor having called his creditors together, and having made to them an offer of a certain amount in the pound : — Held, that this did not amount to a declaration of intention to suspend payment, and did not, therefore, constitute an E 99 BANKRUPTCY— ^c« of Bankruptcy. 100 act of bankruptcy. Trustee, Ex parte, Walsh, In re, 52 L. T. 694 ; 2 M. B. E. 112— D. ^What Constitutes.] — By s. 4, sub-s. 1 (/t) of the Bankruptcy Act, 1883, it is provided that a debtor commits an act of bankruptcy if he gives notice to any of his creditors that he has sus- pended, or that he is about to suspend, payment of his debts. A debtor through his agents issued a circular to his creditors, setting out a state- ment of his affairs and offering them a certain amount in the pound, adding that he had no other property, that he was going out of business and into some situation. The agents after the issue of the circular paid some debts by the debtor's direction : — Held, that this circular issued by the agents amounted to a declaration by the debtor that he was about to suspend payment, and as such was an act of bankruptcy. Gibson, Ex parte, Lamb, In re, 55 L. T. 817 — D. Ailirmed 4 M. B. E. 25— C. A. Where two circulars were sent out by the solicitors of the debtor to the creditors, calling a meeting of the creditors, and laying before them the position of the debtor, and further stating that by the kindness of friends, and by raising money upon his furniture, such debtor might be enabled to pay 10s. in the pound, provided all the creditors would accept it to save bankruptcy proceedings, but that if all the creditors would not agree, there was no alternative but to seek the protection of the court : — Held, that such statements amounted to a notice by the debtor " that he has suspended, or that he is about to suspend, payment of his debts," so as to consti- tute an act of bankruptcy under s. 4, sub-s. 1 (h), of the Bankruptcy Act, 1883. WoUtenholme, Ex parte, Wolstenholme, In re, 2 M. B. E. 213 — D. Assigument of Proceeds of Sale of Property.] — G., a farmer, whose lease was about to expire in September, ] 884, placed all his live and dead stock in the hands of an auctioneer to realize, and in order to prevent H., who held a judgment for 1301. against him, and also a promissory note for SSL, from stopping the sale, G. signed and gave the following letter addressed to the auc- tioneer : — " I authorize and request you to pay to H. out of the first proceeds of the sale of my farming live and dead stock (after satisfying the landlord's claim for rent) the sum of 168Z., being the amount due from me to him, and I hereby appropriate the sum of 168Z. out of the proceeds of such sale for the purpose of such payment accordingly — Dated, August 18, 1884." G. then owed other debts of about 150Z. The goods were sold by the auctioneer on August 21, and realized 2761. gross. The net proceeds after payment of rent amounted to 142Z. A receiving order was made on October 22. The crops on the farm sold or paid for by the incoming tenant realized 148Z., and G.'s furniture 12?. 6. had no other property. The trustee in bankruptcy claimed the 142Z. : — Held, that H. was entitled to the 142Z., and the transaction in question was not an act of bankruptcy. JemMns, Ex parte, OlanvUle, In re, 33 W. K. 523 ; 2 M. B. E. 71— Cave, J. Fraudulent Conveyance — ^Assignment of all Debtor's Property — Intent to defeat or delay Creditors.] — A trader in embarrassed circum- stances in July, 1882, assigned substantially the whole of his property (including his stock in trade, book debts, and the goodwill of his busi- ness) to a single creditor, in consideration (as expressed in the deed) of the release by that creditor of a debt of 3,271Z. then owing to him by the debtor. In fact, at the date of the assignment, only 1,370Z. was due by the assignor to the assignee, and the real consideration was the release by the assignee of that debt, and a secret verbal agreement between him and the assignor that he should undertake the payment of the assignor's debts (either the whole of his debts, or, at any rate, his trade debts). On the same day the assignor entered into a written agreement to manage the business as the servant of the assignee at a weekly salary. The assignee, a few days before the execution of the deed, but after the arrangement between the parties had been come to, paid out some executions for the assignor, and shortly after the execution of the deed he paid an arrear of rent which the assignor owed to his landlord. The business was, after the execution of the deed, carried on by the assignor in his own name, just as it was before, there being nothing to show that he was not the real as well as the apparent owner of it, though he was in fact acting under the directions of the assignee. None of the other creditors knew of the assignment. In March, 1883, the assignor was adjudged a bankrupt. At the date of the bankruptcy nearly all the trade debts due by the assignor at the date of the deed had been paid in the course of the carrying on of the business : — Held, by Cotton and Bowen, L.JJ., that the deed was void as against the trustee in the bankruptcy as an act of bankruptcy, its necessary effect being to defeat and delay the assignor's creditors in enforcing their ordinary remedies for the recovery of their debts, and there being no means by which they could compel the fulfilment by the assignee of his agreement to pay their debts. Chaplin, Ex parte, Sinclair, In re, 26 Ch. D. 319 ; 53 L. J., Ch. 782 ; 51 L. T. 345— C. A. Held, by Fry, L. J., that the deed was void as against the assignor's creditors under the statute, 13 Eliz. c. 5. lb. Assignment of whole Property to secure existing Debt and further Advance.] — When a bill of sale of the whole of a trader's property is executed as security for an existing debt and a fresh advance, the true test whether the execu- tion of the deed is an act of bankruptcy, is, was the fresh advance made by the lender with the intention of enabling the borrower to continue his business, and had he reasonable grounds for believing that the advance would enable the borrower to do so 1 If these questions can be answered in the affirmative, the execution of the deed is not an act of bankruptcy. Johnson, Ex parte. Chapman, In re, 26 Ch. D. 338 ; 53 L. J., Ch. 763 ; 50 L. T. 214 ; 32 W. E. 693— C. A. The court ought not to look at the uncommu- nioated intention of the borrower, nor at the actual result of the loan. lb. Fraudulent Transfer of Property — Payment by Agent.] — An agent, who, in obedience to the previous direction of his principal, pays away money of the principal which is in his hands, knowing before he makes the payment (though he did not know when he received the money) that the payment will when completed consti- 101 BANKRUPTCY— Dfl&tor's Summo7is. 102 tute an act of bankruptcy on the part, of the principal, is not liable to the trustee iu the sub- sequent bankruptcy of the principal for the money so paid away. The trustee could recover the money from the agent only on the ground that he had paid away the money of the trustee, and in such a case the money would become the trustee's money only on the completion of the act of bankruptcy to which his title would relate back, i.e., not until after the money had left the agent's hands. Helder, Mx parte, Lewis, In re, 24 Ch. D. 339 ; 53 L. J., Ch. 106 ; 49 L. T. 612 Fraudulent Preference.]— A fraudulent pre- ference is not per se an act of bankruptcy. Zuck, Ex parte, Kemp, In re, 49 L. T. 809 ; 32 W. E. 296— C. J. B. Computation of Time — " Within Three Months."]- By s. 6, sub-s. 1 (c), Bankruptcy Act, 1883, " a creditor shall not be entitled to present a bankruptcy petition against a debtor unless the act of bankruptcy on which the peti- tion is grounded has occurred within three months before the presentation of the petition." A debtor committed an act of bankruptcy on the 13th August, and a petition was presented on the 13th November : — Held, that the petition was presented in time. Foster, Ex parte, Hanson, In re, 56 L. T. 573 ; 35 W. K. 456 ; 4 M. B. K. 98— D. Act of Bankruptcy committed before the 1st of January, 1884.] — ^A receiving order can be made on a bankruptcy petition presented under the Bankruptcy Act, 1883, founded on an act of bankruptcy committed before that act came into operation, but in respect of which no bankruptcy proceedings had been taken before that date. And the fact that liquidation proceedings under the Bankruptcy Act, 1869, were pending when the act of 1883 came into operation, and that those proceedings afterwards came to an end by reason of the creditors failing to pass any resolution, does not affect the power of the court to make the receiving order. Pratt, Ex parte, Pratt, In re, infra. Waiver of Proof.] — A debtor who has appeared on a bankruptcy petition and not taken the objection that the act of bankruptcy has not been strictly proved, will be deemed to have waived his right of proof. Eoans, Ex parte, Evans, In re, 50 L. T. 158 ; 32 W. R. 281— C. A. If, on the hearing of a bankruptcy petition, the act of bankruptcy alleged is not strictly proved, but the debtor appears and does not raise the objection, and a receiving order is made, he cannot on an appeal from that order raise the objection. Pratt, Em parte, Pratt, In re, 12 Q. B. D. 334 ; 53 L. J., Ch. 613 ; 50 L. T. 294 ; 32 W. B. 420 ; 1 M. B. B. 27— C. A. y. SXBTOB'S SUMMOKS. Service — Inaccurate Copy — " Formal Defect or Irregularity."] — On serving a debtor with a debtor's summons the sealed copy which was delivered to him stated the amount of the debt claimed by the creditor to be 24Z. (instead of 74Z., the real amount), but these words were added, " being the sum claimed of you by him according to the particulars hereunto annexed." The particulars thus referred to were set forth on •the second half of a sheet of paper, the first half of which contained the summons. The par- ticulars stated the luuount of the debt, and the circumstances under which it arose, correctly : — Held, that the error in the summons was a merely "formal defect" within the meaning of s. 82 of the Bankruptcy Act, 1869, by which the debtor could not possibly have been misled, and that no substantial injustice had been caused to him by it, and, consequently, that the service of the summons was not invalidated by it, and an adjudication of bankruptcy founded on the summons could not be impeached. Johnson, Ex parte, Johnson. In fe, 25 Ch. D. 112 ; 53 L. J., Ch. 309 ; 50 L. T. 157 ; 32 W. R. 175— C. A. By Clerk of Creditor.] — The summoning creditor was a solicitor, and the service of the summons was effected by his clerk, instead of by himself or his attorney, or by an officer of the court, as required by r. 61 of the Bankruptcy Eules, 1870 : — Held, that this irregularity also was cured by s. 82. lb. Time— Substitnted Service.] — E. 59 of the Banki'uptcy Rules, 1870, does not apply to substituted service of a debtor's summons, but, if personal service cannot be effected, an order for substituted service may be made under r. 61 after the expiration of the time limited by r. 59 for effecting personal service, and the substituted service must be effected within such reasonable time as the court may fix. Warburg, Ex parte, Whalley, In re, 25 Ch. D. 336 ; 53 L. J., Ch. 336 ; 32 W. E. 542— C. A. ' Security.] — Wherq a debtor's summons had been served for non-payment of 250Z., part of a larger debt of 1.4002. , and after service of the summons the entire debt became payable, and was disputed by the debtor, the court held that the registrar had, under s. 9 of the Bankruptcy Act, 1869, upon a bankruptcy petition, founded on non-compliance with the summons, an absolute discretion to order security to be given for the larger amount. Eoans, Ex parte, Evans, In re, 50 L. T. 158 ; 32 W. E. 281— C. A. What included iu Surety's Bond.] — The prose- cution of a counter-claim is a " proceeding con- tinued," within the meaning of the surety's bond given in pursuance of s. 7 of the Bank- ruptcy Act, 1869. Norman v. Bolt, 1 C. & E. 77 —Field, J. VI. BANKRUPTCY NOTICE, PETITION AND RECEIVING OBDER. 1. Parties to. 2. Amount and Nature of Debt, 3. Powers of the Court. 4. Practice. a. In General. b. Staying Proceedings. e. Application to Rescind Order. 1. PARTIES TO. Any Creditor — Notice served by another Creditor.]— When an act of bankruptcy has been committed' by the failure of a debtor to comply E 2 103 BANKRUPTCY — Notice, Petition and Receiving Order. 104 with a bankruptcy summona, any creditor may avail himself of it for the purpose of presenting a bankruptcy petition against the debtor ; the right to petition is not limited to the creditor who has served the bankruptcy notice. Dearie, Ex parte, Hastings, In re, infra. Trustee for absolute Owner.] — Under the Bankruptcy Act, 1883, as under the Bankruptcy Act, 1869, a mere trustee of a debt for an absolute beneficial owner is not entitled to pre- sent a bankruptcy petition against the debtor unless the cestui que trust, if capable of dealing with the debt, joins as a co-petitioner. Cidley, Ex parte (9 Oh. D. 307), followed. Dearie, Ex parte, Hastings, In re, li Q. B. D. 184 ; 64 L. J., Q. B. 74 ; 33 W. K. 440 ; 1 M. B. E. 281— C, A. Leave to Amend,] — A bankruptcy peti- tion having been presented by a bare trustee of a debt, and dismissed on the ground that the cestui que trust ought to have been joined as a petitioner, leave was given by the Court of Appeal (though more than three months had elapsed since the presentation of the petition) to amend it by joining the cestui que trust, with her consent, but the appellant was ordered to pay the costs of the appeal, and the costs (if any) occasioned by the amendment. Dearie, Ex parte, Hastings, In re, supra. At the hearing of a bankruptcy petition the objection was raised on behalf of the debtor that the petitioning creditor was a mere trustee for his father, and the registrar after hearing the evidence, having come to that conclusion, the petition was dismissed without leave to amend : — Held, that although the registrar was justified in so doing, as a matter of indulgence, leave to amend the petition by joining the father would be granted, but such leave must be subject to the condition that all costs thrown away should be paid by the father within one month, includ- ing the costs of the appeal. Hinshelwood, Ex parte,'Ellis, In re, 4 M. B. E. 283— C. A. Substitution of Petitioning Creditors.] — A creditor's petition in bankruptcy founded on the execution by the debtor of a deed of assignment for the benefit of creditors, was dismissed on the ground that the petitioning creditors had assented to the deed. More than three months after the execution of the deed, two non-assenting creditors applied to rescind the order dismissing the peti- tion, and asked that their names might, under s. 107 of the Bankruptcy Act, 1883, be substituted for those of the original petitioning creditors : — Held, that the court had no jurisdiction under s. 107 to entertain the application, the petition having been dismissed, and more than three months having elapsed since the act of bank- ruptcy upon which it was founded. Ma/ugliam, Ex parte, Maugham, In re, 21 Q. B. D. 21 ; 57 L. J., Q. B. 487 ; 59 L. T. 253 ; 36 W. E. 846 ; 5 M. B. E. 152— D. Liquidator of Company. ] — The liquidator appointed in the voluntary winding-up of a company may serve a bankruptcy notice, under the Bankruptcy Act, 1883, upon a judgment debtor of the company. Winterhottom, Ex parte, Winterbottom, In re, 18 Q. B. D. 446 ; 56 li. J., Q. B. 238 ; 56 L. T. 168 ; 4 M. B. E. 5— D. Not in his own Name.] — A balance order was made against A. to pay to the ofiicial liquidator of the Land Development Association a certain sum for calls due from A. to the com- pany. The ofiBcial liquidator brought an action as ofScial liquidator on that order, and obtained judgment against A., and thereupon issued a bankruptey notice in his own name as official liquidator of the company. A petition was pre- sented against A., founded on that notice, and came on for hearing before the registrar, who dismissed it, and from his dismissal this appeal was brought : — Held, that the petition was rightly dismissed by the registrar, as it was irregular. Maohay, Ex parte, Shirley, In re, 58 L. T. 237— D. Purchase by Creditor of Debt— Absence of mala fides.] — A. was secretary to a death club, and as such received sums of money and paid all claims owing to members. Certain mistakes having occurred in A.'s accounts, A. agreed to refund all sums missing, and in addition A. paid by bills 45Z. each to B. and C, members of the club, for claims which they were entitled to have paid by the club. A. absconded, and his whereabouts was unknown. B. purchased bona, fide for \hl, C.'s debt of 45Z., so as to enable him to take pro- ceedings in bankruptcy against A. B. presented a petition, and a receiving order was obtained. Against that order A. appealed ; — Held, that as B.'s purchase of C.'s debt was made perfectly bonS, fide, it was valid and not an abuse of the bankruptcy laws, and that the receiving order was therefore well founded. Salter, Ex parte, Baher, in re, 58 L. T. 233 ; 36 "W. E. 558 ; 5 M. B. E. 5— D. Joint Petition by Persons not Joint Traders,] — ^Where debtors who are neither partners nor joint traders join in presenting a bankruptcy petition, the petition is an abuse of the process of the court, and the court has jurisdiction, not- withstanding s. 8 of the Bankruptcy Act, 1888, to refuse to make a joint receiving order. Official Receiver, Ex parte, Bond, In re, 21 Q. B. D. 17 ; 57 L. J., Q. B. 501 ; 58 L. T. 887 ; 36 W. E. 700 ; 5 M. B. E. 146— Gave, J. Notice in Name of Partners. — Bankruptcy of one Partner before Hearing of Petition.] — After the bankruptcy of a partner and the appointment of a trustee of his property his solvent partner has a right to receive, and can give a good dis- charge for, the partnership assets, and is entitled, for the purpose of collecting or recovering the assets, to use the name of the trustee, upon giving him an indemnity. After one of two partners had filed a liquidation petition and a receiver had been appointed, a judgment was recovered in an action previously commenced in the names of the two partners against 0., a debtor of the firm. A bankruptcy notice in the names of the two partners was then served on 0. ; he failed to comply with it within the seven days limited for the purpose, and a bankruptcy petition was pre- sented against him in the names of the two partners. Before this petition came on to be heard, the creditors of the partner who had filed the liquidation petition had resolved on a liqui- dation by arrangement, and had appointed a trustee of his property : — Held, that though there was a good act of bankruptcy, a receiving order could not properly be made against 0., unless the trustee in the liquidation was joined as a co- 105 BANKEUPTCY— iV^oiice, Petition and Receiving Order. 106 petitioner. Owen, Hx parte, Owen, In re, 13 Q. B. D. 113 ; 53 L. J., Ch. 863 ; 50 L. T. 514 ; 32 W. E. 811 ; 1 M. B. E. 93— C. A. "Creditor who has obtained final Judgment," — Assignee of Judgment Debt.] — In the Bank- ruptcy Act, 1883 (46 & 47 Vict. c. 62), s. 4, sub-s. 1 Cy) — ^whioh enables a creditor who has obtained a final judgment against a debtor to issue a bankruptcy notice requiring him to pay or secure the debt — the words " creditor who has obtained a final judgment" do not include an assignee of the judgment debt. Hx parte Woodall (13 Q. B. D. 479), explained. Blanchett, Ex parte, Keeling, In re, 17 Q. B. D. 303 ; 55 L. J., Q. B. 327 ; 3i W. E. 438 ; 3 M. B. E. 157— C. A. "Judgment Creditor" — ^Alimony — Wife.] — By s. 103, sub-s. 5, Bankruptcy Act, 1883, "Where under s. 5 of the Debtors Act, 1869, application is made by a judgment creditor to a court having bankruptcy jurisdiction for the committal of a judgment debtor, the court may, if it think fit, decline to commit, and in lieu thereof, with the consent of the judgment creditor make a receiving order against the debtor." An order was made in the Divorce Court for pay- ment of alimony. The payments having fallen into, arrear, a judgment summons was issued by the wife against her husband, and, with the con- sent of the wife and in the absence of the husband, a receiving order was made in lieu of an order for committal. The case was ordered to be reheard : — Held, that the wife was not a judgment creditor within the meaning of sub-s. 5 of s. 103, and that a receiving order could not be made. Otway, Ex parte, Otway, In re, 58 L. T. 885 ; 36 W. E. 698 ; 5 M. B. E. 115— Cave, J. Damages in Divorce Suit — Payment to Husband.] — In a divorce suit by a husband a decree of dissolution of the marriage was made whereby F., the co-respondent, was ordered to pay into court the amount of damages assessed by the jury. A further order was made that E. should pay the money to the husband for the purposes of settlement upon the children of the marriage. F. faUed to pay, whereupon the hus- band applied to the judge in bankruptcy for a committal order under s. 5 of the Debtors Act, 1869. F. had means sufficient to pay part only of the money. The judge, acting under s. 103, sub-s. 5, of the Bankruptcy Act, 1883, made a receiving order in lieu of an order for committal : — Held, that the judge bad no jurisdiction to make the order, inasmuch as the husband, being a mere receiver or collector for the court of money not to be applied for his own benefit, was not a "judgment creditor" within the meaning of s. 103, sub-s. 5, of the Bankruptcy Act, 1883 ; but that an order should be made against F., under s. 5 of the Debtors Act, 1869, for payment of the money by instalments. Fryer, Ex parte. Fryer, In re, 17 Q. B. D. 718 ; 55 L. J., Q. B. 478 ; 55 L. T. 276 ; 34 W. E. 766 ; 3 M. B. K. 231— C. A. 2. AMOUNT AND NATUEE OF DEBT. Amount — Costs of issuing abortive Execu- tion.] — The costs of an abortive execution cannot be added to the judgment debt for the purpose of making up the amount of debt re- quired by the Bankruptcy Act, 1883, s. 6, to support a bankruptcy petition. Long, Ex parte, Oiiddeford, Ex parte. Long, In re, 20 Q. B. D. 316 ; 67 L. J., Q. B. 360 ; 58 L. T. 664 ; 36 W. E. 346 ; 5 M. B. E. 29— C. A. Valuation of Security by Secured Creditor.] — When a secured creditor presents a bankruptcy petition against his debtor it is not necessary that the estimate given by the petitioner of the value of his security should be a true estimate ; but, if an adjudication is made, the trustee in the bankruptcy will be entitled to redeem the security at the amount of the petitioner's esti- mate. Taylor, Ex parte, Lacey, In re, 13 Q. B. D. 128 ; .1 M. B. E. 113— D. Judgment on which Execution stayed — Gar- nishee Order absolute against Debtor.] — Where a creditor has obtained final judgment and a garnishee order absolute has been made against the judgment debtor as garnishee, execution on the judgment must be taken to be stayed so long as the garnishee order remains undischarged, and the creditor is not entitled to serve a bank- ruptcy notice on the garnishee in respect of the judgment debt, even though the debt in respect of which the garnishee order was made has been in fact paid. Hyde, Ex parte. Connan, In re, 20 Q. B. D. 690 ; 57 L. J., Q. B. 472 ; 59 L. T. 281 ; 5 M. B. E. 89--C. A. Interpleader Order.] — Where goods taken in execution under a judgment are claimed by a third party, and an interpleader order is made, under which the sheriff withdraws from posses- sion, execution on the judgment has been stayed, within the meaning of s. 4, sub-s. 1 (j'), of the Bankruptcy Act, 1883, and therefore the judg- ment creditor cannot issue a bankruptcy notice. Ford, Ex parte. Ford, In re, 18 Q. B. D. 369 ; 56 L. J., Q. B. 188 ; 56 L. T. 166 ; 3 M. B. E. 283— D. On 14th Jan., judgment was recovered against the debtor for 446 Z. and execution was issued under which the sheriff levied, but a third per- son having claimed the goods, an interpleader order was obtained, whereby upon payment of 201. into court by the claimant, the sheriff was directed to withdraw. On 14th March, a bank- ruptcy notice under s. 4, sub-s. 1 (§'), of the Bankruptcy Act, 1883, requiring payment of the debt, was served upon the debtor, but the notice was dismissed by the registrar of the county court on the ground that within the meaning of the section, execution had been stayed : — Held, that there had been no stay, and that the cre- ditor was entitled to issue a bankruptcy notice. Lindsey, Ex parte. Bates, In re, 67 L. T. 417 ; 35 W. E. 668 ; 4 M. B. E. 192— D. On July 8th judgment was recovered against the debtor, and execution was issued under which the sheriff levied on July 11th. On July 13th, a third person having claimed the goods, an interpleader summons was issued by the sheriff ; on the same day a bankruptcy notice under s. 4, sub-s. 1 (y), of the Bankruptcy Act, 1883, was served by the judgment creditor upon the debtor, on which a receiving order was subsequently made against him : —Held, that at the time when the bankruptcy notice was issued the creditor was not in a position to issue execu- tion, and that the receiving order must be set aside. PUllips, Ex parte, Phillips, In re, 5 M. B. E. 40— D. 107 BANKRUPTCY — Notice, Petition and Receiving Order. 108 Foreolosnre Decree.]- -A creditor who, as equitable mortgagee, has obtained a foreclosure decree and an order for sale of the property of the debtor is still, if no such sale is found to be possible, at liberty to serve a bankruptcy notice on the debtor and to take further proceedings ; and the fact of such an order for sale not having been carried out is not sufficient ground for an adjournment by the registrar of further pro- ceedings on the notice on the application of the debtor under r. 139 of the Bankruptcy Rules, 1886. Mestnn, Ex parte, Kelday, In re, 36 W. B. 585—0. A. Agreement for Payment by Instalments — Bight to issue Second Notice on Default. ] — If execution may be issued on a judgment, a bank- ruptcy notice under s. i, sub-s. 1 (^), of the Bankruptcy Act, 1883, may be issued; where, therefore, a bankruptcy notice had been issued in respect of a judgment debt and withdrawn, a second bankruptcy notice may be issued in respect of the same debt. Feast, Em parte, Feast, In re, i M. B. B. 87— C. A. Judgment for debt and costs having been recovered against a debtor, the costs were taxed and the creditor issued a bankruptcy notice in respect of the judgment debt and costs. An agreement was thereupon come to between the debtor and the creditor, by which the debt and costs were agreed at 500Z., and the debtor agreed to pay lOOZ. at once, and the balance by monthly instalments of 20Z. ; in case any instalment was not duly paid, the whole amount then unpaid was forthwith to become due and payable. The lO.OZ. and some of the instalments were duly paid, but on default subsequently being made, a bankruptcy notice for the unpaid balance was issued by the creditor :— Held, that the agree- ment entered into was to the effect that, upon default of payment of any instalment, the unpaid balance was to become due under the judgment, and that the creditor was entitled to issue a bankruptcy notice in respect of the debt. II. Where Hxecntion cannot be Issued without Leave.] — A judgment against a firm cannot be made the subject of a bankruptcy notice under s. i, sub-s. 1 (^), of the Bankruptcy Act, 1883, against a partner against whom execution could not, under Ord. XLII. r. 10, have issued upon the judgment without leave. Ide, Ex parte, Ide, In re, 17 Q. B. D. 755 ; 55 L. J., Q. B. 484 ; 35 W. B. 20 ; 3 M. B. E. 239— C. A. The executor of a creditor who has obtained a final judgment is not entitled to issue a bank- ruptcy notice against the judgment-debtor, un- less he has obtained leave from the court, under rule 23 of Ord. XLII. of the rules of the Supreme Court of 1883, to issue execution on the judg- ment. Under sub-s. 1 Qf) of s. 4 of the Bank- ruptcy Act, 1883, the creditor who issues a bank- ruptcy notice must be in a position to issue execution on the judgment. Woodhall, Ex parte, WoodJiall, In re, 13 Q. B. D. 479 ; 53 L. J., Oh. 966 ; 50 L. T. 747 ; 32 W. B. 774 ; 1 M. B. B. 201— C. A. Conditional Payment of Debt.] — Within seven days after the service of a bankruptcy notice the debtor gave to the creditor a promissory note, payable two months after date, for the amount of the debt, which note the creditoi accepted : — Held, that, the note being a conditional payment of the debt, the creditor could not, during the currency of the note, avail himself of the bank- ruptcy notice to obtain a receiving order against S the debtor. Matt/tew, Ex parte, Matthew, In re, 12 Q. B. D. 506 ; 51 L. T. 179 ; 32 W. B. 813 ; 1 M. B. B. 47-0. A. Payment prevented — Attachment of Shares by Judgment Creditor.] — A judgment creditor having served a bankruptcy notice on the debtor, within the seven days allowed for complying vrith the notice, obtained a charging order on certain shares belonging to the debtor : — Held, that the creditor had not, by attaching the shares, prevented the debtor from paying the judgment debt, and that the debtor was not entitled to have the bankruptcy notice set aside. McMurdo, Ex parte, Sedgwiclt, In re, 60 L. T. 9 ; 37 W. E. 72 ; 5 M. B. B. 262—0. A. "Pinal Judgment" — Judgment for Costs.] — At the trial of an action in the Ohancery Divi- sion, upon motion for judgment in default of pleading, judgment was given ordering and adjudging that the defendant should be per- petually restrained from practising as a solicitor at Liverpool or otherwise, in violation of his covenant with the plaintiff. And the court declared that the partnership between the plain- tiff and the defendant ought to be dissolved as from the date of the plaintiff's notice, and" ordered and decreed the same accordingly. And it was ordered that an inquiry should be made what was the amount of the damages which the plaintiff had sustained by reason of the defen- dant's breach of covenant, and that the defen- dant should within fourteen days from the date of the chief clerk's certificate, pay the amount of the damages, when certified, to the plaintiff. And it was ordered that the defendant should pay to the plaintiff his taxed costs of the action. The costs were taxed, and were partly paid by the defendant. The inquiry as to damages was not prosecuted : — Held, that the order for the payment of costs was a " final judgment " vfith- in the meaning of s. 4, sub-s. 1 (^), of the Bank- ruptcy Act, 1883, and that the plaintiff was entitled to serve the defendant with a bank- ruptcy notice for the unpaid balance of costs. Chinery, Ex parte (12 Q. B. D. 842), explained. Moore, Ex parte, Faithfull, In re, 14 Q. B. D. 627 ; 54 L. J., Q. B. 190 ; 52 L. T. 376 ; 33 W. B. 438 ; 2 M. B. E. 52— C. A. The defendants to an action for the specific performance of a contract executed the deeds necessary to carry out the contract, and an order was then made by consent that, on the defen- dants paying the plaintiff 's taxed costs of the action, all further proceedings in the action should be stayed. The costs were taxed, and an order was made that the defendants should, on or before a day named, pay the taxed amount. Payment was not made within the time ap- pointed : — Held, that the order for payment was not a " final judgment," within the meaning of sub-s. 1 ((/) of s. 4 of the Bankruptcy Act, 1888, and that a bankruptcy notice could not be founded on it. Sclimitz, Ex parte, Colien, In re, 12 Q. B. D. 509 ; 53 L. J., Oh. 1168 ; 50 L. T. 747 ; 32 W. E. 812 ; 1 M. B. B. 55— C. A. In an action in the Ohancery Division the defendant obtained under Oi-d. XXVII., r. 1, an order for the dismissal of the action for want of prosecution, and the payment of costs by the 109 BANKRUPTCY— JV^otice, Petition and Receiving Order. 110 plaintifE : — Held, that the order was not a " final judgment " within the meaning of sub-s. 1 (jg') of 8. 4 of the Bankruptcy Act, 1883, and that the defendant was not entitled to serve the plaintiff with a bankruptcy notice in respect of such order. Strathmore QMarl'), Ex parte, 'Riddell, In re, 20 Q. B. D. 512 ; 57 L. J., Q. B. 259 ; 58 L. T. 838 ; 36 W. R. 532 ; 5 M. Bi E. 59— C. A. "Balance Order."] — A "balance order" in respect of calls made on a contributory in the winding-up of a company is not a "final judgment " within the meaning of sub-s. 1 (j') of 8. 4 of the Bankruptcy Act, 1883, and a bank- ruptcy notice cannot be issued in respect of such an order. JEx parte WMnnmj (13 Q. B. D. 476), followed. Grimwade, Ex parte Tennent, In re, 17 Q. B. D. 357 ; 55 L. J., Q. B. 495 ; 3 M. B. E. 166— C. A. A " balance order " made in the voluntary winding-up of a company on a contributory, for the payment of calls which had been made upon him before the commencement of the winding-up, is not a " final judgment " within the meaning of Bub-8. 1 (y) of s. 4 of the Bankruptcy Act, 1883, and therefore a bankruptcy notice cannot be issued in respect of such an order. Whinney, Ex parte, Sanders, In re, 13 Q. B. D. 476 ; 1 M. B. E. 185— D. Garnishee Order Absolute.] — ^A garnishee order absolute is not a " final judgment " against the garnishee within sub-s. 1 (^) of s. 4 of the Bankruptcy Act, 1883, and the judgment creditor who has obtained the order cannot issue a bank- ruptcy notice against the garnishee in respect of it. Chinery, Ex parte, Chinery, In re, 12 Q. B. D. 342 ; 53 L. J., Ch. 662 ; 50 L. T. 342 ; 32 W. E. 469 ; 1 M. B. E. 31— C. A. Order for Payment of Alimony, pendente lite.] — An order for the payment of alimony pendente lite is not a "final judgment " against the husband within the meaning of sub-s. 1 (^) of s. 4 of the Bankruptcy Act, 1883, and a bank- ruptcy notice cannot be issued against the husband in respect of arrears due under such an order. Moore, Ex parte (14 Q. B. D. 627) distii^;uished. JSenderson, Ex parte, Henderson, In re, 20 Q. B. D. 509 ; 57 L. J., Q. B. 258 ; 58 L. T. 835 ; 36 W. E. 567 ; 5 M. B. R. 52— C.A. Judgment by Consent — Failure to file Judge's Order.] — Where a creditor in whose favour a judgment has been entered up by consent omits to file the judge's order in accordance with 8. 27 of the Debtors Act, 1869, he is nevertheless entitled to serve the debtor with a bankruptcy notice founded on such judgment. Guest, Ex paHe, Russell, In re, 37 W. E. 21 ; 5 M. B. E. 258— C. A. 3. POWEES OF THE COURT. Power to Refuse — " Sufficient Cause."] — The fact that shortly before the presentation of a bankruptcy petition against a debtor he has, with the assent of a large majority of his creditors, executed a deed assigning the whole of his property to trustees appointed by the creditors, to be administered by them as in bank- ruptcy, is not, within the meaning of sub-s. 3 of s. 7 of the Bankruptcy Act, 1883, a " sufiioient cause " for refusing to make a receiving order on the petition. Dixon, Ex parte, Dixon, In re, 13 Q. B. D. 118 ; 50 L. J., Ch. 769 ; 50 L. T. 414 ; 32 W. E. 837 ; 1 M. B. E. 98— C. A. The fact that a debtor has, shortly before the presentation of a banki-uptoy petition against him, entered into an arrangement with his creditors (to which the petitioner has not assented), is not, however beneficial to the creditors the terms of the arrangement may be, a " sufficient cause " within the meaning of s. 7 (3) of the Bankruptcy Act, 1883, for dis- missing the petition. There is no jurisdiction under such circumstances to dismiss the peti- tion, and there is no jurisdiction to adjourn the hearing of it with a view to its ultimate dis- missal in case the arrangement shall be found to work well. Oram, Ex parte, Watson, In re, 15 Q. B. D. 399 ; 52 L. T. 785 ; 33 W. E. 890 ; 2 M. B. E. 199— C. A. The decision in Dixon, Ex parte (13 Q. B. D. 118) did not depend upon the particular terms of the arrangement in that case, but on the fact that the arrangement was made at such a time and in such a manner as not to bind dissentient creditors. lb. Power to make Receiving Order " in lieu of" Committal Order.] — A judgment creditor for a sum of 31Z. applied in a county court for the committal of the judgment debtor on the ground that he had means to satisfy the debt, and had not done so. The judge, after hearing evidence, held that the debtor had no means of satisfying the debt, and consequently he refused to com- mit, but on the application of the creditor made a receiving order in lieu of a committal order under sub-s. (5) of s. 103 of the Bankruptcy Act, 1883. On a summons for a prohibition it was held that the learned judge had a discretion to make, and had properly made, the receiving order "in lieu of " a committal order, although he could not have made a committal order in consequence of the inability of the judgment debtor to satisfy the debt. Meg. v. Sussex County Court Judge, 59 L. T. 32— D. Petition presented in wrong Court.] — If a bankruptcy petition is by inadvertence pre- sented in a wrong bankruptcy court, the court to which it is presented has jurisdiction to make a receiving order. If, however, the petition is wilfully i^eseuted in a wrong court, this is a ground for dismissing it. The divisional court made a receiving order, which it held that the court ought to have made, and to which the debtor had raised no other objection than want of jurisdiction, giving leave to the debtor to apply afterwards to the divisional court to dis- charge the order on any ground arising since the hearing in the county court. May. Ex parte, Erightmore, In re, 14 Q. B. D. 37 ; 51 L. T. 710 ; 33 W. E. 598 ; 1 M. B. E. 253— D. Judgement Debt — Power of Court to inquire into.]— The court of bankruptcy has power to go behind a judgment and inquire into the considera- tion for the judgment debt.not only at the instance of the trustee in the bankruptcy of the debtor upon the question of the proof of the debt, but also at the instance of the judgment debtor him- Ill BANKEUPTCY — Notice, Petition and Receiving Order. 112 self upon the hearing of a petition by the judg- ment creditor for a receiving order, even though the debtor has consented to the judgment ; and, U on the hearing of the petition facts are alleged by the debtor, of which evidence is tendered, and which, if proved, would show that, notwith- standing the judgment, there is, by reason of fraud or otherwise, no real debt, the court ought not to make a receiving order without first inquiring into the truth of the debtor's allegations. KibMe, Ex parte (10 L. E. Ch. 373), discussed and followed. Lennom, £lx parte, Lennox, In re, 16 Q. B. D. 315 ; 55 L. J., Q. B. 45 ; 54 L. T. 452 ; 34 W. K. 51— C. A. Although upon a petition by a judgment creditor for a receiving order, the court has power at the instance of the judgment debtor to go behind the judgment, yet, if the facts alleged by the debtor as a reason for so doing, are in the opinion of the registrar immaterial and insuffi- cient, he is right in refusing to hear evidence in support of such facts and in making a receiving order as prayed. Lipscomle, Ex parte, Lips- comhe. In re, 4 M. B. E. 43— C. A. The Court of Bankruptcy has power to go behind a judgment at the instance of the debtor, upon the hearing of a petition presented by the judgment creditor for a receiving order ; but the court will not do so on the mere sugges- tion by the debtor that the judgment debt is bad, if it considers that the objections raised are frivolous. Bey f us. Ex parte, or Saville, Ex parte, Saville, In re, 35 W. E. 791 ; 4 M. B. E. 277— C. A. A judgment debtor having been served with a bankruptcy notice, without alleging fraud or that there had been a miscarriage of justice at the trial, proposed to give evidence before the registrar to show that the issues in the action, which had been tried before a judge and jury, had been wrongly decided : — Held, that the registrar rightly refused to admit such evidence. Scotch WhisJtey Distillers, Ex parte, Flatau, In re, 22 Q. B. D. 83 ; 37 W. E. 42— C. A. 4. PRACTICE. a. In General. Form of BTotice — Liquidator.] — By the Com- panies Act, 1862, ss. 95 and 133, a liquidator appointed in the voluntary winding-up of a company is empowered " to bring or defend any action, suit, or prosecution, or other legal pro- ceeding, civil or criminal, in the name and on behalf of the company." A liquidator appointed in the voluntary winding-up of a company served upon the judgment debtor of the company a bankruptcy notice headed " Ex parte N., liqui- dator of the M. Bank, Limited." In the body of the notice the debtor was required to pay to N., " the liquidator of the bank," the sum " claimed by him " as the amount due on the judgment, or to secure or compound for the same sum " to his satisfaction," &c. The debtor was not in any way misled by the terms of the notice : — Held, that the form of the notice must comply strictly with the provisions of s. 95, a substantial compliance not being sufficient, and therefore, that the notice, not being in the name of the company, was bad. Winterlottom, Ex parte, Winterbottom, In re, 18 Q. B. D. 446 ; 56 L. J., Q. B. 238 i 56 L. T. 168 ; 4 M. B. E. 5— D. Omission of Kame — Amount of Debt.] — On 14th Jan., judgment was recovered against the debtor for 446Z. and execution was issued under which the sheriff levied, but a third person having claimed the goods, an interpleader order was obtained,^ whereby upon payment of 201. into court by the claimant, the sheriff was directed to withdraw -.—Held, that the fact that the creditor had omitted to insert his name in the heading of the bankruptcy notice, such heading being left " Ex parte "' — ^the notice being sued out by him in person and giving complete information on the face of it who the creditor was — did not render the notice invalid ; that the fact of the notice claiming the whole debt of 446Z. without considering the 20Z. which might be stayed, only amounted to a formal error which the court would rectify. Lindsey, Ex parte. Sates, In re, 57 L. T. 417 ; 35 W. E. 668 ; 4 M. B. E. 192— D. Signature of Petition by Attorney.] — A bank- ruptcy petition by a creditor may be signed on his behalf by his duly constituted attorney. A power of attorney authorised the attorney (inter alia) " to commence and carry on, or to defend, at law or in equity, all actions, suits, or other proceedings touching anything in which I.or my ships or other personal estate may be in anywise concerned " : — Heldj that this power authorised the attorney to sign on behalf of his principal a bankruptcy petition against a debtor of the principal. Richards, Ex parte, or Wallace, Ex parte, Wallace, In re, 14 Q. B. D. 22 ; 54 L. J., Q. B. 293 ; 51 L. T. 551 ; 33 W. E. 66 ; 1 M. B. E. 246— C. A. Substituted Service— Death of Debtor before Service.] — Where a debtor against whom a creditors' petition in bankruptcy has been pre- sented dies before service of the petition upon him, there is no power under s. 108 of the Bankruptcy Act, 1883, or the Bankruptcy Enles, to dispense with service or to order substituted service of the petition, and the bankruptcy proceedings must necessarily be stayed. Hill, Ex parte, Easy, In re, 19 Q. B. D. 538 ; 56 L. J., Q. B. 624 ; 35 W. E. 819 ; 4 M. B. E. 281 — C.A. Advertisement in Kewspaper — Discre- tion.] — On appeal from an order directing that publication of a notice in the London Gazette and in the Times newspaper should be deemed to be good service of a bankruptcy petition upon the debtor : — Held, that under Eule 154 and Form 16 of the Bankruptcy Eules, 1886, the registrar, on being satisfied that the debtor was avoiding personal service, had jurisdiction to make the order in question and that upon the facts of the case there was no ground for the appeal. ColUnson, Ex parte, Collinson, In re, 4 M. B. E. 161— C. A. Affidavit — Committee of Lunatic] — ^When the petitioning creditor is a lunatic so found by inquisition, the affidavit verifying the petition may be sworn by the committee of the lunatic. Erady, In re, 19 L. E., Ir. 71— Bk. Petition by Company.] — Where a bank- ruptcy petition presented by a company under s. 148 of the Bankruptcy Act, 1883, was not accompanied by the affidavit required by rule 113 BANKEUPTCY— i>7ofice, PetiUon and Receiving Order. 114 258 of the Bankruptcy Eules, 1886, stating that the person presenting the petition was the authorized public oflScer or agent of such com- pany : — Held, that the petition was rightly re- fused. Moss, Hob parte, Orifps,In re,5 M. B. E. 226— Cave, J. Evidence in Support of Fetition — ^Adjonrn- ment.] — Where, upon the hearing of a bank- ruptcy petition against a debtor, the evidence requisite under s. 7, sub-s. 2, of the Bankruptcy Act, 1883, is adduced, it is not necessary, in the event of the hearing being adjourned, to give at such adjourned hearing similar evidence under the above sub-section. Winby, Ex parte, , In re, 3 M. B. E. 108— C. A. Transfer to Bankruptcy Court — Notice to •Tudgment Debtor.] — When a judgment summons for a committal comes before the judge of a county court, not having jurisdiction in bank- ruptcy, and he, being of opinion that a receiving order should be made in lieu of a committal, makes an order transferring the matter to the Bankruptcy Court, notice of the subsequent pro- ceedings under the order of transfer must be served on the judgment debtor. In such a case the Court of Bankruptcy is not bound to act on the opinion of the county court judge, and to make a receiving order as of course, but must exercise its judicial discretion on hearing the case on its merits. Andrews, Ex parte, Andrews, In re, 15 Q. B. D. 335 ; 54 L. J., Q. B. 572; 2 M. B. E. 244— Cave, J. Beceiving Order, Effect of— Order for Payment of Money.] — An order was made upon W. to pay a sum of money, due from him, as solicitor, to the trustee of a will. W. made default in pay- ment of the money ; and, on the 25th April, 1887, a receiving order was made against him upon a creditor's petition. Two days aftei'wards, W. was served with a notice of motion (dated the 22nd of April) for leave to issue an attach- ment against him for non-compliance with the order : — Held, that, as the attachment applied for was not mere civil process, but process of a punitive or disciplinary nature, the existence of the receiving order was no bar to the application. But application refused, as, looking at all the circumstances, no benefit was likely to accrue to the applicant from making the order. Wray, In re, 36 Ch. D. 138 ; 56 L. J., Ch. 1106 : 57 L. T. 605 ; 36 W. E. 67— C. A. b. Staying: Froceedingrs. Pending Appeal — Discretion.] — A judgment debtor, after having been served with a bank- ruptcy notice, gave notice of appeal from the judgment on which the bankruptcy notice was founded : — Held, that it was a matter of discre- tion of the registrar whether he should stay the petition penifing the appeal. Scotch WhisJtey Digtillers, Ex parte, Plateau, In re, 22 Q. B. D. 83 ; 37 W. E. 42— C. A. The Court of Appeal will not interfere with the exercise of discretion by the registrar, under sub-s. 4 of s. 7 jof the Bankruptcy Act, 1883, in adjourning the hearing of, or dismissing, a bankruptcy petition founded on non-compliance with a bankruptcy notice in respect of a judg- ment debt, when an appeal is pending from the judgment, unless it is clear that the registrar could not have been right. If the appeal ap- peal's to be a bona fide one, the hearing of the bankruptcy petition ought to be adjourned. If the appeal is evidently frivolous, a receiving order ought to be made, notwithstanding its pendency. Seywortli, Ex parte, Rhodes, In re, 14 Q. B. D. 49 ; 64 L. J., Q. B. 198 ; 52 L. T. 201 ; 1 M. B. E. 269— C. A. Evidence of Reasonable Ground.]— A debtor, after the service of a bankruptcy notice upon him under s. 4, sub-s. 1 (^), of the Bankruptcy Act, 1883, commenced an action against his cre- ditor to set aside the judgment on which such notice was founded, and prayed that an account might be taken, and made other claims in the nature of a counterclaim, The debtor delivered the statement of claim in the action, and applied to the court to dismiss the bankruptcy notice. The registrar, after reading the statement of claim, adjourned the application sine die, with liberty to apply : — Held, that the statement of claim was not evidence, and that the registrar, before interfering with the operation of the bankruptcy notice, ought to have been satisfied by evidence that the debtor had at any rate some reasonable ground for bringing the action. Basan, Ex parte, Foster, In re, 2 M. B. E. 29 — C. A. See also Meston, Ex parte, Kilday, In re, ante, col. 107. Two Petitions. J— On 19th Feb., 1885, a petition was presented in the London Bank- ruptcy Court, but the hearing of the petition was adjourned from time to time with the consent of the petitioning creditor. On 5th Jan., 1886, a receiving order was made on this petition in the High Court at 11.30 o'clock, and on the same day at 1 o'clock a receiving order was also made against the debtor in the Swansea County Court at the instance of another creditor. On an ap- peal by the creditor presenting the petition in London to set aside such order of the county court : — Held, that from the evidence it was clear that the legitimate business of the debtor was carried on at Swansea, which was prima facie the place where his business transactions ought to be investigatejJ, and that the petition- ing creditor in London, having for his own pur- pose delayed for several months to proceed with his petition, the proper course was not to inter- fere with the Older of the county court, and that an application should be made to the London Court to stay the proceedings in London. Martin, Ex parte, Strich, In re, 3 M. B. E. 78— D. c. Application to Kescind Order. Payment of Creditors in full — Jurisdiction.] — A debtor presented a bankruptcy petition and a receiving order was made. The debtor's father, who was a partly secured creditor, immediately afterwards paid all the unsecured creditors in full. The only other creditor was fully secured. The debtor then applied to the court to rescind the receiving order and to allow him to withdraw his petition. The application was assented to by the fully secured creditor and by the father. The judge held that he had no jurisdiction to rescind the order, but he made an order staying all further proceedings under the order : — Held, that there was jurisdiction to grant the application. Wemyss, Ex parte, Wemyss, In re, 18 Q. B. D. 115 BANKEUPTCY — Notice, Petition and lieceiving Order. 116 244 ; 53 L. J., Q. B. 496 ; 32 W. E. 1002 ; 1 M. B, B. 157— D. Consent of Creditors — Proof.] — The registrar, before rescinding the appointment of a receiver, or granting a stay of proceedings, is not bound to be satisfied that the consent of all the creditors has been obtained ; but he must ex- ercise his discretion as to the sufficiency of the consent obtained in each case. Pending such rescission or stay of proceedings the debtor should not, even with the consent of all the peti- tioning creditors, be left in unfettered control of the estate ; but a stay of the advertisement by the receiver may properly- be granted. Carr, JUx parte, Carr, In re, 35 W. K. 150— C. A. Substitution of Scheme.] — After a re- ceiving order had been made against the debtor on his own petition, a scheme was put forward by him which the creditors were willing to accept, and the debtor thereupon, with the assent of the creditors, applied to the county court to rescind the receiving order : — Held, that the registrar was right in refusing to rescind the receiving order under the circum- stances, and that if the debtor was desirous of substituting a scheme, he must proceed in the manner provided by s. 18 of the Bankruptcy Act, 1883. Dixon, Ex parte, Dixon, In re, 37 W. E. 161 ; 5 M. B. E. 291— C. A. Affirming 59 L. T. 776— D. Judgment Debt paid.] — On 30th Dec, 1886, judgment for 33Z. was recovered against the debtor, and in January, 1887, a judgment summons was issued ; on 11th Feb. 1887, a receiving order in lieu of a committal, was made against the debtor under s. 103, sub-s. 5, of the Bankruptcy Act, 1883. The debtor thereupon paid the debt and the judgment creditor consented to the receiving order being rescinded, but on application being made for that purpose, the county court judge held that the debtor had not shown that the consent of the creditors to such rescission had been obtained and he declined to make any order : — Held, that the debtor was entitled to have the matter referred to the registrar to report whether a majority of the creditors did assent or not. Whether where a receiving order in lieu of a committal is made under s. 103, sub-s. 5, of the Bankruptcy Act, 1883, it is necessary that the consent of the creditors should be shown, if the debtor pays the judgment creditor and applies to rescind, quaere. Ilughes, Ex parte, Hughes, In re, 4 M. B. E. 236— D. To what Court made.] — A receiving order having been made in the county court against a debtor, a compromise was subsequently agreed upon between the petitioning creditor and the debtor, and an application was made by the debtor with the consent of the petitioning ■creditor to the Divisional Court in Bankruptcy, to rescind the receiving order on the terms of such compromise : — Held, that the court had no jurisdiction to entertain such an application. Slmrly, Ex parte, Sliurly, In re, 5 M. B. E. 158 — D. Transfer of Proceedings.] — On the hear- ing of a judgment summons in the county court, a receiving order was made against the debtor under s. 103, sub-s. 5, of the Bankruptcy Act, 1883, and the proceedings were thereupon trans- ferred under Eule 360 (1) of the Bankruptcy Eules, 1886, to the London Bankruptcy Court, as being the court to which a bankruptcy peti- tion against the debtor would properly be pre- sented. The debtor paid the debt and appealed to the Divisional Court in Bankruptcy to rescind the receiving order : — Held, that the proper course for the debtor to pursue was to apply to the county court judge for a rehearing. Hughes. Ex parte, Huglies, In re, 4 M. B. B. 73— D. ■ Of&cial Eeceiver — Appearance at Hearing.] — A receiving order having been made against a debtor upon his own petition, his public ex- amination was adjourned ; and ultimately, the creditors accepted a scheme of arrangement under which they received less than the fuU amount of their debts. In an application to have the receiving order discharged, made by the debtor with the concurrence of all the creditors, the official receiver appeared and ob- jected to the discharge of the order until after the public examination had been held, on the ground that he was not satisfied with the debtor's conduct : — Held, that the official re- ceiver was entitled, under the Bankruptcy Act, 1883, to appear in the application and oppose the discharge of the receiving order ; and that the county court judge had a discretion to refuse the discharge. Leslie, Ex parte, Leslie, In re, 18 Q. B. D. 619 ; 56 L. T. 569 ; 35 W. E. 395 ; 4 M. B. E. 75— D. Notice to, of Application.] — Where after a receiving order has been made against a debtor on a bankruptcy notice, the petitioning creditor is settled with, and with his assent the debtor appeals for the purpose of having the receiving order set aside, it would appear tiiat notice should be given to the official receiver, and where this was not done, the court dis- charged the receiving order as prayed, but directed that the order should not be drawn up for four days and notice given to the official receiver so as to enable him to come forward if he thought fit. Fletcher, Ex parte, Fletcher, In re, 4 M. B. E. 113— D. Appeal — Delay in Proceedings.] — After a bankruptcy petition had been presented, but before the day appointed for the hearing, the debtor obtained the consent of the petitioning creditor to an adjournment with a view to a settlement, and a form of consent to an exten- sion of time was sent to the County Court Eegistrar by post, but on the day appointed for the hearing the Eegistrar dismissed the petition .| for non-appearance. Notice of appeal having I been given by the creditor the debtor filed his " own petition, on which a receiving order was made. When the appeal came on for hearing ; an adjournment was taken by consent, in order that a scheme of arrangement proposed by the i debtor might be considered, but this subsequently fell through, and the petitioning creditor now proceeded with the appeal a year after the notice thereof had been given : — Held, that the i delay which had occurred was fatal to the appeal, and that no sufficient reason having been adduced to justify the court in hearing it, notwithstanding such delay, the appeal must be 117 BA-NKBVFTCY—Adjvdication. 118 dismissed. Ward, Ex parte, Oamlen, In re, i M. B. B. 301— D. VII. ADJUDICATION. Jniisdiction — Act of Bankruptcy committed 'before commencement of Bankruptcy Act, 1883.] — A debtor filed a liquidation petition in Decemlper, 1883, and a receiver of his property was appointed. On the 15th of January, 1884, the adjourned iirst meeting of the creditors was held, when the creditors separated without pass- ing any resolutions, and without again adjourn- ing the meeting. On the 21st of January one of the creditors presented a bankruptcy petition against the debtor under the Act of 1869, alleging the filing of the liquidation petition as an act of bankruptcy. On the 1st of February, the regis- trar adjudicated the debtor bankrupt on the petition. The debtor was present, and raised no objection to the jurisdiction of the court to make the order. The receiver had not been discharged. On the 14th of March (Praii, Ex pa/rte, 12 Q. B. D. 334, having meanwhile been decided), the debtor applied to the registrar for a rehearing of the petition, and a reversal of the order of adjudication, on the ground that there was no jurisdiction to make it. The registrar refused the application : — Held, that the court had no jurisdiction to make the adjudication under the Act of 1869 on the ground that an act of bank- ruptcy had been committed, but that it would have had jurisdiction to make it under the power given by sub-s. 12 of s. 125 of that act. Held, therefore, that, as the objection had not been raised before the registrar, a rehearing ought not to be allowed. May, Ex parte. May, In re, 12 Q. B. D. 497 ; 53 L. J., Q. B. 571 ; 50 L. T. 744 ; 32 W. E. 839 ; 1 M. B. E. 50— 0. A. Application for, after Abortive Liquidation Petition — Payment of Applicant's Debt.] — A debtor filed a liquidation petition in August, 1879. A receiver of his property was at once appointed, and injunctions were granted to restrain some of the creditors from proceeding against him for their debts. The first meeting of the creditors was held on the 20th of October, 1879, when it was resolved to adjourn to the 15th of December, 1879. Similar resolutions for adjournment were passed again and again, the meeting being ultimately, on the 15th of Novem- ber, 1882, adjourned to the 28th of March, 1883. No resolutions for liquidation by arrangement or composition were passed. In January, 1883, two of the creditors applied to the Court of Bank- ruptcy by motion, under sub-s. 12 of s. 125 of the Bankruptcy Act, 1869, for an adjudication of bankruptcy against the debtor. At the adjourned meeting on the 28th of March, 1883, the credi- tors resolved that it was inexpedient in the interests of the creditors that any further pro- ceeding should be taken under the petition, and that application should be made to the court to discharge the receiver, and dismiss the petition, or stay all further proceedings under it. The registrar, on the 3rd of May, made an adjudica- tion. The debtor appealed, and on the hearing of the appeal an ofier was made by a friend of his to pay the debts of the two creditors in full and to provide for their costs of the application, the payment to bemade by the friend out of his own moneys, and an undertaking being given by him that neither directly nor indirectly should the payment be made out of the debtor's assets : — Held, that, notwithstanding the resolution of the 28th of March, and having regard to the fact that the receiver had not been discharged, the liquidation proceedings were still pending, and that if the adjudication order was discharged, no other creditor would be injured, for that the court would have jurisdiction to adjudicate the debtor a bankrupt on the application of any other creditor. The adjudication was accordingly dis- charged on the terms of payment proposed, and on the undertaking of the debtor to apply to the Court of Bankruptcy for leave to summon a fresh first meeting of the creditors. M'Henry, Ex parte, Mllenry, In re, 24 Ch. D. 35 ; 53 L. J., Ch. 27 ; 48 L. T. 921 ; 31 W. R. 873— G. A. Held, by Baggallay and Cotton, L.JJ., and semble, per Bowen, L.J., that the court had jurisdiction to order a fresh first meeting of the creditors under the petition. lb. Annulling of Adjudication — Jurisdiction.] — The discharge of a bankrupt having been granted on payment of a dividend of Is. 6d. in the pound to the creditors, the county court judge, on application made to him, subsequently annulled the bankruptcy : — Held, that there was no power to aimul a bankruptcy outside the provisions of the Bankruptcy Act, and that in any event, the county court judge was wrong in making the order under the circumstances of the present case. Board of Trade, Ex parte, Gyll, In re, 58 L. J., Q. B. 8 ; 59 L. T. 778 ; 37 W. E. 164 j 5 M. B. E. 272— D. Limit of Time.]— In a proper case an adjudication of bankruptcy may be annulled upon an application made after the expiration of the time limited for appealing from it. Sect, 10 of the Bankruptcy Act, 1869, has no applica- tion to an appeal from an adjudication, or to an application to annul it. Brown, Ex parte (9 L. E., Ch. 304), explained ; Johnson, Ex parte (12 Ch. D. 905), distinguished. Geisel, Ex parte, Stanger, In re, 22 Ch. D. 436 ; 53 L. J., Ch. 349 ; 48 L. T. 405 ; 31 W. E. 264— C. A. Costs.] — An order was made by the Court of Appeal to annul an adjudication of bankruptcy, on the ground that the debtor must be presumed to have been dead when it was made. Probate had been granted of a will executed by the debtor : — Held, that the costs and charges of the trustee properly incurred, and the costs of all parties of the application to annul and of the appeal, must be paid out of the estate, and that the executors must confirm all acts properly done by the trustee in the bankruptcy. lb. VIIT. PROPERTY. 1. What passes to Trustee. a. Leaseholds — Disclaimer. h. Order and Disposition. c. Property appropriated to meet Bills of Exchange. d. Property held by Bankrupt as Trustee. e. Salary and Income. /. Materials being used by Bankrupt in Execution of Contract. g. Of Married Women. h. In other Cases. 2. Proceedings for Discovery and Protection of Property. 119 BANKRUPTCY— Proper*?/. 120 1. WHAT PASSES TO TRUSTEE. a. Iieaseholds— Bisclaimer. Agreement for a Lease.] — The right of dis- claimer conferred on trustees by s. 55 of the Bankruptcy Act, 1883, is not limited to property of the bankrupt divisible amongst his creditors as defined by s. 44, but extends to any property as defined by s. 168, from which no benefit can accrue to the bankrupt's estate. A debtor held his business premises for a term of years under an agreement for a lease, and entered into a binding contract for the sale and assignment of his business and his business premises to a com- pany, but became bankrupt before the completion of the contract : — Held, that the debtor's in- terest in the agreement for a lease was in the nature of land burdened with onerous covenants which his trustee in bankruptcy could under the circumstances disclaim. MonTiliouse, Ex parte, Mauglian, In re, 14 Q. B. D. 956 ; 54 L. J., Q. B. 128 ; 33 W. E. 308 ; 2 M. B. R. 25— Field, J. SiBcIaimer hinding on Crown.] — The pro- visions of s. 55 of the Bankruptcy Act, 1883, as to the disclaimer of onerous property, are " pro- visions relating to the remedies against the property of a debtor " within the meaning of s. 150 of that Act, and are therefore binding upon the Crown. Commissioners of Woods and Forests, Em parte, Thomas, In re, or Thomas, Ex paHe, Trotter, In re, 21 Q. B. D. 380 ; 57 L. J.. Q. B. 574 ; 59 L. T. 447 ; 36 W. R. 375 ; 5 M. B. E. 209— D. Application for leave to Disclaim — Extension of Time.] — Although the three months given to a trustee by s. 55, aub-s. 1, within which to disclaim onerous property, may have expired, the court has power under s. 105, sub-s. 4, to grant the trustee an extension of time. When a trustee applies for an extension of time, he should give some good reason for the indulgence he asks, and if the rights of other parties wiU be prejudiced by the time being extended, the court will, as a general rule, put the trustee upon terms. Fareman, Ex parte. Price, In re, 13 Q. B. D. 466 ; 33 W. E. 139 ; 1 M. B. E. 153— Cave, J. Service of Notice out of the Jurisdiction.] — Notice of motion by the trustee for leave to disclaim may be served out of the jurisdiction upon persons whose interests may be affected. Paterson, Ex parte, Sathbone, In re, 56 L. J., Q. B. 504 ; 57 L. T. 420 ; 35 W. E. 735 ; 4 M. B. R.-270— Cave, J. Joinder of Respondents.] — A trustee when applying to the court under the Bank- ruptcy Act, 1883, s. 55, sub-s. 3, for leave to disclaim property may include in one application several distinct premises so long as there is one landlord or chief respondent who is affected by the whole application, although there may be other respondents who are only affected by part of it. Trustee, Ex parte, Whita/u5 the order as prayed. The defendant ap- pealed : — Held, that the appeal ought to be allowed, and the action restrained, as there were no special or exceptional circumstances which would entitle the court to allow it to continue. Srownscombe v. Fair, 58 L. T. 85 — D. Actions in Chancery Division— Fending Ap- plication in Court of Bankruptcy.] — In January, 1885, S. commenced an action against M. for an account of what was due to him on the security of a mortgage of certain freehold property and a biU of sale of certain chattels, both dated the 7th of August, 1879, and to enforce those securities by foreclosure or sale. It was subsequently agreed that M. should execute a further bill of sale in favour of S., and that nothing should be done by S. to enforce his securities before the 30th June, 1886. A bill of sale was accordingly executed on the 3rd July, 1885. On the 25th March, 1886, M. was adjudicated a bankrupt ; and on the 26th May, 1886, two persons were duly appointed trustees in his bankruptcy, and were afterwards added as parties to the action. On the 27th May, 1886, S. applied to the Court of Bankruptcy for an order that one of such trustees in bankruptcy, who had also been ap- pointed receiver of the bankrupt's property, might be directed to withdraw from possession of the chattels comprised in the bills of sale. This application was, however, adjourned at the request of the trustees, and, for various reasons, had never been brought on again, and was still pending in the Court of Bankruptcy. In July, 1886, S. commenced an action against the trustees in bankruptcy for an account of what was due to him on the security of the bill of sale dated the 3rd July, 1885, and to enforce such security by foreclosure or sale. A motion was subse- quently made by the trustees in bankruptcy, under s. 10 (2) of the Bankruptcy Act, 1883, that all further proceedings in the two actions might be stayed until further order, on the ground that S.'s application to the Court of Bankruptcy was still pending, and had not been adjudicated upon, and that the same questions would have to be determined on the hearing of that application as those which arose in the actions, viz., whether the bills of sale were or were not fraudulent and void, and that such questions would be better tried in the Court of Bankruptcy than in the Chancery Division : — Held, that under the circumstances of the case, it would not be proper that the actions should be stayed, as questions would probably arise fitter for the consideration of the Chancery Division than of the Court of Bankruptcy : that the question in each case must be decided on the facts therein, and that the discretion of the court was unlimited ; and that the fact of S. having made an application to the Court of Bankruptcy did not deprive him of his right to- proceed in the actions, as such application only related to the chattels, and not to the real estate. Sharp v. McHeTi/ry, 55 L. T. 747 — Kay, J. Fending Appeal from Bankruptcy Notice.] — See ante, col. 113. 3. TRANSFER OF PROCEEDINGS. Notice — Farties to be Served.] — Notice of an application to transfer the proceedings in a bankruptcy from a county court to the High Court, or vice versS,, must be served upon the official receiver. JaeU, In re, 18 Q. B. D. 682 ; 35 W. R. 735 ; 4 M. B. E. 150— Cave, J. Upon an application for transfer of proceed- ings, notice should be served on the bankrupt and the official receiver, notwithstanding that a trustee may have been appointed. Trustee, Ear parte. Yapp, In re, 55 L. T. 820 — Cave, J. See also Andrews, Bx parte, Andrews, In re, ante, col. 113. When ordered— Froof.] — When an application is made under s. 102, sub-s. 4, of the Bankruptcy Act, 1883, for the transfer of an action pending in another Division of the High Court, some proof must be adduced that advantage is likely to be derived by reason of such transfer to the judge m bankruptcy. "Whether in a case where a receiving order has been made, but the debtor has not been adjudicated a bankrupt, the court has any jurisdiction to make such order, quaere. Official Receiver, Ex parte, White, In re, 1 M. B. R. 77— Cave, J. Discretion — Appeal.]— There is no abso- lute rule that a question relating to the estate of a bankrupt ought to be determined by the Court of Bankruptcy, and not by the High Court, whenever the trustee in the bankruptcy is, by virtue of the bankruptcy law, claiming by a higher title than that of the bankrupt himself. It is a matter of judicial discretion in each case how the question shall best be tried. In such a matter the Court of Appeal ought not readily to overrule the discretion of the bankruptcy judge. Reynolds, Ex parte, Barnett, In re, 15 Q. B. D, 169 ; 54 L. J., Q. B. 354 ; 53 L. T. 448 ; 33 W. R. 715 ; 2 M. B. R. 147— C. A. To what Court and to whom made.] — On 4th February a receiving order was made against one partner in the High Court ; and on 6th February the other partner presented a petition in a county court. On an application by the partner against whom a receiving order had been made in the High Court for ah order to transfer the proceedings in the county court against the other partner to the High Court : — Held, that the application for transfer ought to be made to the county court and that in any event the application was one that ought to have been made to the registrar and not to the judge in court. Nicholson, Ex parte, Nicholson, In re, 3 M. B. R. 46— Cave, J. 197 B ANKR UPTCY— Practice. 198 An application for the transfer of bankruptcy proceedings from the London Court of Bank- ruptcy to the county court is an application which should be made to the bankruptcy judge at chambers. Official Receiver, Ex parte, Wil- liams, In re, 5 M. B. E. 103 — Cave, J. Two partners in trade presented a bankruptcy petition in a county court. Their statement of affairs showed that they had lost nearly 200,000^. in five years' trading. Some of the creditors ap- plied to the judge for a certificate that in his opinion the proceedings would be more advan- tageously conducted in the London court. The judge refused the application, on the ground that it was premature. An appeal was presented, but was afterwards withdrawn, and on this occasion some correspondence took place between the soli- citors of the applicants and the solicitors of other creditors who opposed the proposed transfer. The application was afterwards renewed, and there was evidence that the debtora owed a large amount to creditors in London, Liverpool, and other places, and that, in order to carry out a proper investigation of their accounts, it would be necessary to refer to the books of various merchants in London with whom they had traded, and also to the books of their bankers and of the bankers' London agents. The judge refused the application, on the groundi;hat the applicants were estopped by the correspondence between the solicitors from making it r — Held, that there was no such estoppel, and that, as the judge had therefore decided on a vrrong ground, he had in effect refused to exercise his dis- cretionary power, and there was an appeal from his decision : that under the circumstances the proceedings would be more advantageously con- ducted in the London court, and that the certi- ficate asked for ought to have been granted, and the Divisional Court itself granted the certificate. Soanes, Ex parte, Walker, In re, 13 Q. B. D. 484 ; 1 M. B. E. 193— D. Costs. ] — If an agreement not to renew the ap- plication for a certificate had been in fact entered into between the solicitors of the applicants and the solicitors of the other creditors, it could not have affected the power of the court to make the certificate, though it might have affected the right of the applicants to costs. — Per Cave, J. Order made that the applicants should have their costs out of the debtors' assets, in case the cre- ditors should ultimately approve of the proposed transfer. lb. 4. EVIDENCE. Viva Voce — Leave.] — Where in a case to be heard before the judge in bankruptcy it is desired to use vivS voce evidence, the applica- tion for leave to give such viv^ voce evidence must be made beforehand to the judge and not to the registrar. Adamson, Ex parte, Hagan, In re, 3 M. B. E. 117— Cave, J. Viv§, voce evidence in support of a motion may be given at the hearing ; but special leave for that purpose must be previously obtained. Kearsley, Ex parte, Oenese, In re, 17 Q. B. D. 1 ; 55 L. J., Q. B. 825 ; 34 W. E. 474 ; 3 M. B. B. 57 — Cave, J. Where parties agree that the evidence on the hearing of a motion shall be taken vivS, voce instead of by affidavit, it is unnecessary to obtain the leave of the judge, but written notice must be given to the clerk of the court, who will enter the case in a special list of motions to be heard with viva voce evidence, and an application must subsequently be made to the court to fix a day for the hearing of the motion. Where there is no such agreement a motion for leave to take the evidence vivS, voce must be made in the usual way. Budden, Ex parte, UnderMll, In re, 18 Q. B. D. 115 J 35 W. E. 336 ; 3 M. B. E. 282— Cave, J. County Court.]— The rule laid down, that leave to use viva voce evidence at the hearing of a motion in bankruptcy must be obtained on a separate application made before the motion comes on to be heard, does not apply to the county courts. Watkins or Watkmson, Ex parte, Wilson, In re, 57 L. T. 201 ; 35 W. E. 668 ; 4 M. B. E. 238— D. Affidavit sworn Abroad.] — When an affidavit or proof in bankruptcy is sworn abroad before a British consul, or vice-consul, a, notarial certifi- cate in verification of the signature and qualifi- cation of the consul or vice-consul, is not required. The notarial certificate is only required when such an affidavit or proof is sworn before a foreign functionary. Magee, Ex parte, Magee, In re 15 Q. B. D. 332 ; 54 L. J., Q. B. 394 ; 33 W. E. 655— Cave, J. Of Onstom — ^Witnesses.] — Where the fact of a custom existing in a particular trade has to be decided, the case is one proper to be tried with the assistance of a jury, and with witnesses, and not upon affidavit evidence only. Callow, Ex parte, Jensen, In re, 4 M. B. E. 1 — D. Public Examination of Bankrupt — Admissi- bility of.] — The answers of a bankrupt on his public examination are not admissible in sub- sequent motions in the same bankruptcy against parties other than the bankrupt. Upon a motion by the trustee against a creditor to set aside as fraudulent a transfer of certain goods to him by the bankrupt, the trustee tendered in evidence the answers of the bank- rupt upon his public examination : — Held, that such evidence was not admissible. Boa/rd of Trade, Ex parte, Brunner, In re, 19 Q. B. D. 572 ; 56 L. J., Q. B. 606 ; 57 L. T. 418 ; 35 W. E. 719 ; 4 M. B. E. 255— Cave, J. 5. COSTS. Trustees' Solicitor — Scale where Assets do not exceed £300— Costs ■ ' payable out of the Estate."] —By the Bankruptcy Eules, 1886, r. 112 : (2) Subject to the provisions of No. 1 of the scale of costs, where the estimated assets of the debtor do not exceed the sum of 300Z. a lower scale of solicitors' costs shall be allowed in all proceedings under the act in which costs are payable out of the estate. The trustee having been ordered by the court to pay the costs of unsuccessful proceedings under the act with power to recover them out of the estate : — Held, that such costs were not liable to be taxed upon the lower scale above mentioned, Jaynes, Ex parte, Dowson, In re, 21 Q. B. D. 417 ; 57 H 2 199 BANKRUPTCY— Practice, 200 L. J., Q. B. 622 I 59 L. T. 446 ; 36 W. E. 864 ; 5 M. B. R. 240— Cave, J. Sale of Bankrupt's Property subject to Incumbrances.] — Where the property of a bank- rupt is sold subject to incumbranoes, the solicitor of the trustee in bankruptcy is — under r. 9 of Schedule I. of the General Order under the Solicitors' Kemuneration Act, 1881, and the Bankruptcy Rules, 1886, General Regulations, Part VII., r. 2 — entitled to a percentage on the gross amount of the purchase-money and not merely on the amount realised from the equity of redemption. Harris, Ex parte, Gallard, In re, 21 Q. B. D. 38 ; 57 L. J., Q. B. 528 ; 59 L. T. 147 ; 36 W. R. 592 ; 5 M. B. E. 123— Cave, J. Administrative Work — Work done.] — When a trustee in bankruptcy has, with the au- thority of the committee of inspection, employed a solicilor to assist him in the performance of his duties as trustee in reference to the distribu- tion of the bankrupt's estate, the giving of notices, and winding-up the bankruptcy, the costs of such solicitor must be taxed upon the principle that a solicitor is not to charge solici- tor's charges for administrative work, but only such charges as are fair and reasonable, having regard to the work done. Board of Trade, Ex parte, Pi-yor, In re, 59 L. T. 256 ; 5 M. B. R. 232— Cave, J. Costs of Taxation.] — Under an ordinary reference to tax the costs of the solicitor to a trustee in bankruptcy, the taxation is regulated by the practice of the Court of Bankruptcy, and the provisions of the Act 6 & 7 Vict. c. 73, have no application. There is no rule in the Court of Bankruptcy that, if on such a taxation the amount of the solicitor's bill is reduced by more than one-sixth, he is to pay the costs of the taxation. Marsh, Ex parte. Marsh, In re, 15 Q. B. D. 340 ; 54 L. J., Q. B. 557 ; 53 L. T. 418 ; 34 W. R. 620 ; 2 M. B. R. 232— C. A. Beview of Taxation of Bill.] — An appli- cation by the Board of Trade for a review of taxation of the costs of a solicitor under r. 104 of the Bankruptcy Rules, 1883, can only be made for the benefit of the estate, and where there is no estate and no trustee such rule will not apply. Phillips, Ex paHe, Modway, In re, 1 M. B. R. 228— Wills, J. Order for Taxation as between Solicitor and Client — Time for.] — Rule 98 of the Bankruptcy Rules, 1883, only empowers the court to direct that costs shall be taxed and paid as between solicitor and client at the time when the order is made awarding the costs. If such a direction is not given at that time, the court has no power to give it subsequently. Shoolbred, Ex parte, Attgell, In re. 14 Q. B. D. 298 ; 54 L. J., Q. B. 87 ; 51 L. T. 678 ; 33 W. R. 202 ; 2 M. B. R. 5— C. A. — - Taxation refused.] — On the bankruptcy of G. his father tendered a proof, which was objected to as to two-thirds by the trustee and expunged by the county court judge. The proof, after amendment, was again rejected and ex- punged, against which an appeal was lodged. Pending the hearing of the appeal the trustee was advised that the proof was good, and entered into a compromise with G. (the father), whereby his claim was considerably reduced on the terms that his costs and those of an opposing creditor should be taxed as between solicitor and client. Against a refusal to order taxation the trustee appealed : — Held, that the refusal was right ; that the application to the county court judge for an order for taxation amounted to an invita- tion to him to declare that his unreversed decision was wrong ; and that the costs must be paid by the trustee personally. Edmunds, Ex parte. Green, In re, 53 L. T. 967— D. Consent Order — Approval by Court,] — Where a form of order by consent in a motion contained an agreement by one of the parties — the trustee in bankruptcy — to pay the costs of the other " as between solicitor and client " : — Held, that such a form of order could not be approved by the court. Seantlebury, Ex parte, Guy, In re, i M. B. E. 300— Cave, J. Of Petitioner — Power of Court to order.] — The second meeting of creditors under a bank- ruptcy petition (held to consider the coniirmation of a scheme of arrangement of the debtor's affairs accepted at the first meeting) is not a " proceed- ing in court " within the meaning of sub-s. 1 of s. 105 of the Bankruptcy Act, 1883, and the court has no power to order the costs of the petitioner incidental to that meeting to be paid out of the debtor's estate. But the court has power to order the petitioner's costs incidental to the public examination of the debtor to be paid out of the estate. Hoard of Trade, Ex parte, Strand, In re, 13 Q. B. D 492 ; 53 L. J., Q. B. 563 ; 1 M. B. E. 196— D. Payment to Creditor — Protection of Estate.] — Where a petitioning creditor incurs costs in trying to protect the estate, and the otficial receiver comes to the conclusion that the estate has been thereby substantially benefited, these costs should in general be allowed and paid to the petitioning creditor. Angier, Ex parte, Johnstone, In re, 32 W. E. 1001 ; 1 M. B. R. 213— Cave, J. Shorthand Notes.]— Tt is the invariable prac- tice of the Bankruptcy Court to refuse the costs of shorthand writer's notes unless the application is made at the commencement of the case. Reid, Ex parte, Gillespie, In re, 33 W. R. 707— Cave, J. Against Board of Trade.] — Although the Board of Trade act in a public capacity, the court wiU not in a proper case consider them as difiering from an ordinary litigant. Phillips, Ex parte, Modway, In re, 1 M. B. R. 232 — Wills, J. Payment to Applicant of Balance paid to Trustee. ] — The bankrupts were stockbrokers who had been employed by the applicant to buy certain specific shares for him, and had received payment for the same. These shares, with others, were deposited by the bankrupts with B. & Co., as security for an advance. When the bank- ruptcy became known B. & Co. sold the shares, reimbiirsed themselves, and handed over the balance to the trustee. Upon the applicants sending in a claim for the balance another claimant retired : — Held, that the money might 201 BANKRUPTCY— ^ppeai. 202 be paid over to the applicant on the terms that his solicitor would give a personal undertaking to repay so much as the court might order at any time within three years. Held, also, that the costs of the applicant must be borne by him, since it would be unjust that the expense of enforcing his claim should be borne by the general body of the creditors. Rankart, Ex parte, Blakeway, In re, 52 L. T. 630 — Cave, J. Costs against Bankrupt.] — See ante, col. 188. Costs against Trustee.] — See ante, col, 94. Costs of Appeal.] — See infra. XIX. APPEAL. 1. Jurisdiction. 2. Parties. 3. In what Cases. 4. Notice of^Timefor. 5. Tlie Deposit — Security for Costs. 6. Leave to Appeal. 7. Costs. 8. Otlier Points. 1. JURISDICTION. To what Court.] — All appeals from decisions of the High Court of Justice in bankruptcy matters, whether given in court or chambers, lie to her Majesty's Court of Appeal and not to a divisional court of the High Court. Oastler, Ex parte, Friedlander, In re, 51 L. T. 309 — 0. A. Agreement for Costs of Solicitor.] — A solicitor agreed to conduct certain bankruptcy proceed- ings on the terms that his costs should not exceed lOZ. In the course of the proceedings his clients left him and employed other solicitors, and he sent in a bill of costs for a larger amount than lOZ. The county court judge, sitting in bankruptcy, declared the agreement to be void, because it did not contain a provision that the solicitor originally employed might conduct the bankruptcy proceedings to an end. At the hear- ing of the appeal a preliminary objection was lodged on behalf of the respondent that the court sitting as a court of appeal in bankruptcy matters only, had no jurisdiction to deal with the question at all : — Held, that by virtue of the Bankruptcy Amendment Act, 1884, the court had jurisdiction to hear the appeal. Payton, Ex parte, Owen, In re, 52 L. T. 628 ; 2 M. B. E. 87— D. 2. PAETIES. " Person aggrieved."] — ^An unpaid creditor of a bankrupt is a " person aggrieved " by the im- proper granting of an order of discharge to the bankrupt, and as such is entitled to appeal against the order. Castle Mail Packets Com- pany, Ex parte, Payne, In re, 18 Q. B. D. 154 ; 56 L. J., Q. B. 625 ; 85 W. E. 89 ; 3'M. B. E. 270 — C. A. When an application made by the ofiScial receiver under s. 20 of the Bankruptcy Act, 1883, and r. 191 of the Bankruptcy Enles, 1886, for an immediate adjudication of bankruptcy against a debtor, on the non-approval of a scheme of arrangement, has been refused or adjourned, the official receiver is a " person aggrieved " by the order, and as such is entitled to appeal against it. (Fry, L.J., dissenting.) Official Seceimr, Ex parte, Meed, In re, 19 Q. B. D. 174 ; 56 L. J., Q. B. 447 ; 56 L. T. 876 ; 35 W. E. 660 ; 4 M. B. E. 225— C. A. Board of Trade — Order of Discharge.] — Eule 237 of the Bankruptcy Eules, 1886, which gives the Board of Trade a right to appeal from an order of discharge where the official receiver has reported facts which would justify the refusal of an unconditional discharge, is a rule for carrying into efEect the objects of the Bankruptcy Act, 1883, within the meaning of s. 127, and is there- fore valid. Board of Trade, Ex parte, Stainton, In re, 19 Q. B. D. 182 ; 57 L. T. 202 ; 35 W. R. 667 ; 4 M. B. R. 242— D. Witness— Refusal of Court to order Witness to answer.] — ^When an appeal is brought against the refusal of the court to order a witness to answer questions put to him during his exami- nation, the witness cannot be made a party to the appeal. Tilly, Ex parte, Scharrer, In re, 20 Q. B. D. 518 ; 59 L. T. 188 ; 36 W. R. 388 ; 5 M. B. R. 79—0. A. 3. IN WHAT CASES. Court of Appeal — Special Case.] — An appeal lies to the Court of Appeal from the decision of the High Court upon a special case for its opinion stated by a county court judge sitting in bankruptcy under sub-s. 3 of s. 97 of the Bankruptcy Act, 1883. Dawes, Ex parte. Moon, In re, 17 Q. B. D. 275 ; 55 L. T. 114 ; 34 W. R. 752 ; 3 M. B. E. 105— C. A. Summons wrongly entitled " In Bankruptcy."] — The judge of a county court not having juris- diction in bankruptcy made an order of com- mittal against the appellant upon a judgment summons under s. 5 of the Debtors Act, 1869. The judgment summons having by mistake been marked with the words " In bankruptcy," an appeal was brought to the divisional court : — Held, that no appeal could lie from the order complained of, to the divisional court in bank- ruptcy. Watkins, Ex parte, Watkins, In re, 3 M. B. R. 146— D. Application for Directions — Bight of Debtor to he heard.] — Where a trustee in a liquidation applied to the county court for directions. as to the acceptance of an offer for the purchase of the debtors' property, and notice was given to the debtors, but at the hearing of the applica- tion the county court judge refused to hear the solicitor for the debtors or to receive evidence on their behalf : — Held, that notice having been given to the debtors, they ought to have been heard, and that an appeal lay from such refusal of the county court judge to do so. Whether, when a trustee applies to the court for directions in any particular matter, the debtor is, in any event, entitled to appear and be heard, quaere. Webi, Ex parte, Webb, In re, 4 M. B. R. 52— Cave, J. Transfer of Proceedings— Certificate of Judge.] —The refusal of the judge of a county court to grant a certificate, under rule 16 of the Bank- 203' BANKBJJVTCY— Appeal. 204 luptoy Rules, 1883, that in his opinion the pro- ceedings under a bankruptcy petition would be more adyantageously conducted in another court, is an order from which an appeal lies, if the judge has refused to exercise his discretion in the matter. In such a case the Court of Appeal, if it is of opinion that the certificate ought to have been granted, will not refer the matter back to the county court, but will itself grant the certificate. Soanes. Ex parte, Walker, In re, 13 Q. B. D. iU ; 1 M. B. E. 193— D. Order refusing Prosecution of Bankrupt.] — An appeal will lie to the divisional court from the refusal of the county court judge to order the prosecution of a. fi'auduleut bankrupt. Jones, Ex parte, Stepliens, In, re, 2 M. B. E. 20— D. Order for Discharge.] — Semble, that an order made in the county court under the Bankruptcy (Discharge and Closure) Act, 1887, being an order made in a bankruptcy matter, may be appealed from to the Divisional Court in Bank- ruptcy, though no right of appeal is expressly given by the act itself. Williams, Ex parte, Williams, In re, 5 M. B. E. 162— D. From SeceiTing Orders.] — See ante, VI., 4, c. Small Bankruptcy — No Leave to Appeal.] — Upon an appeal against the decision of a county court registrar sitting in bankruptcy a pre- liminary objection was lodged that, the case being one of a small bankruptcy under s. 121 of the Bankruptcy Act, 1883, the leave to appeal rendered necessary by r. 199 of the Bankruptcy Bules, 1883, had not been obtained. On a con- tention that this rule was ultra vires : — Held, that the appeal could not be heard, that this right of appeal was not a common law but a statutory right, and that the same statute which gave the right of appeal was competent to give an authority to modify the right by general mles framed in a prescribed manner. Sale, Ex parte, Bale, In re, 52 L. T. 627 ; 83 W. E. 476 ; 2 M. B. E. 92— D. Application for Discharge.] — Eule 273 (6) of the Bankruptcy Eules, 1886, which provides that in small bankruptcies no appeal shall lie from any order of the court except by leave of the court, does not preclude the debtor from appeal- ing, without leave, against a refusal to grant him his discharge. Rankin, Ex parte, Rankin, In re (No. 1), 20 Q. B. D. 341 ; 58 L. T. 120 ; 36 W. E. 526 ; 4 M. B. E. 311— D. Iieave obtained after Xotice of Appeal.] — In a small bankruptcy under section 121 of the Bankruptcy Act, 1883, an appeal to the Divisional Court was heard, although the leave of the county court judge was not obtained when the notice of appeal was given and served. Giison, Exparte, Stockton, In re, 2 M. B. E. 189— D. Appointment of Trustee — Time.] — The difficulty caused by the refusal of a county court judge to give leave to appeal from an order made by him in a small bankruptcy cannot be got rid of by the creditors, after such leave has been refused, appointing a trustee under s. 121 of the Bankruptcy Act, 1883, whereupon "the bankruptcy shall proceed as if an order for summary administration had not been made," at any rate where the appeal by such trustee is npt brought within 21 days. Whether the difliculty can be so got rid of, even though the tnistee appointed does appeal within that time, quaere. March, Ex parte, Richards, In re, 4 M. B. E. 233— D. 4. NOTICE OF— TIME FOE. Notice — Debtor not shewing cause against Petition.] — When a debtor gives no notice under r. 36 of his intention to shew cause against a bankruptcy petition, and the petition is con- sequently heard in his absence, and the court refuses to make, an adjudication, if the petitioning creditor desires to appeal against the refusal he must serve notice of the appeal on the debtor. Wariurg, Ex parte, Whalley, In re (No. 1), 24 Ch. D. 364 ; 53 L. J., Ch. 336 ; 49 L. T. 243— C. A. Substituted Service.] — In a, proper case the Court of Appeal has jurisdiction to make an order for substituted service of a notice of appeal, though no express provision to that effect is contained in the rules of court. 11. Time for — Appeal from Begistrar. ] — An appeal from the decision of the registrar declining to make a receiving order must be brought within twenty-one days. Dear, Ex parte, Conrtenay, In re, 1 M. B. B. 89— C. A. From County Court to Judge.] — Unless the notice of appeal appears on the face of it to have been filed within twenty-one days, it is incumbent upon an appellant to be prepared with evidence to shew that the notice was sent off to the registrar of the county court " forth- with." Hill, Ex parte, Darlyshire, In re, 53 L. J., Ch. 247— C. J. B. Notice sent by Post,] — If notice of a bankruptcy appeal is sent by post, as provided by s. 142 of the Bankruptcy Act, 1883, qusere whether the notice will be in time unless the letter is received by the respondent before the expiration of the twenty-one days limited for appealing. Arden, Ex parte, Arden, In re, or Arden v. Deacon, 14 Q. B. D. 121 ; 51 L. T. 712 ; 33 W. E. 460 ; 2 M. B. E. 1— D. Bejectiou of Proof.] — If a creditor desires to appeal against the rejection of his proof by the trustee, he must give notice of motion in the usual way under r. 19 of the Bankruptcy Eules, 1883, and within twenty-one days limited by r. 174. Morrison, Exparte, Gillespie, In re, 14 Q. B. D. 385 ; 52 L. T. 55 ; 33 W. E. 751 ; 1 M. B. E. 278— Cave, J. Application for Discharge.] — Notice of appeal from an order made by the court on application by a bankrupt for his discharge should be a fourteen days' notice. Where such notice was not given and the objection was taken at the hearing, the court directed the case to stand over for a week until the required time had elapsed. Brown, Ex parte. Landau, In re, 4 M. B. E. 253— C. A. Setting aside Bankruptcy Notice.] — Notice of appeal from the refusal of an order to 205 BANKRUPTCY— ^p^eaZ. 206 set aside a bankruptcy notice should be a four- teen days' notice. Where such notice was not given, the court directed the case to stand ovei- to a certain day until the required time had elapsed, and that notice was to be given to the creditor that the court had appointed such day for the hearing of the appeal. Phillips, Ex paHe, Phillips, In re, 5 M. B. E. 187 — D. Extension of — Bon& fide Mistake — Selay.] — Although the time allowed for appeal in bank- ruptcy matters may be extended by the court, yet some ground must always be shown why this should be done. Where a bonS, fide mistake in the estimation of a proof has been committed, the trustee in bankruptcy ought not to be per- mitted to take advantage of such a mistake, but when a creditor took no steps to reverse the decision of a county court judge refusing to ailow such proof to be amended or withdrawn for more than a year and a half, the court could not permit the case to be reopened. Charles, Ez parte, Trioks, In re, 3 M. B. E. 15 — Cave, J. 5. THE DEPOSIT— SECUEITT FOE COSTS. Deposit, dispensing, with— Appeal by Board «f Trade.] — In the case of an appeal to the Divi- sional Court iu Bankruptcy by the Board of Trade, Eule 131 of the Bankruptcy Eules, 1886, does not apply, and the Board of Trade being a government department is entitled to have the appeal entered without lodging any deposit. Board of Trade, Ex parte. Mutton, In re, 4 M. B. E. 115— D. Bankrupt unable to find Amount.] — Where an application was made by a bankrupt under Eule 131 of the Bankruptcy Eules, 1886, for leave to dispense with the deposit of 20Z. re- quired to be lodged upon an appeal by him from an order of the registrar refusing to annul the adjudication : — Held, that the inability of the bajakrupt himseU to find the means for making the deposit, or to obtain thq necessary sum from his friends, did not constitute such grounds as would justify the court in granting the applica- tion. Grepe, Ex parte, Grepe, In re, i M. B. E. 128— C. A. Where an application was made by a debtor who had presented a bankruptcy petition against himself, to dispense with the deposit of 201. required to be lodged upon an appeal against a decision of the registrar rescinding the receiving order at the request of the official receiver under s. 14 of the Bankruptcy Act, 1883 :— Held, that the debtor's alleged inability to raise the neces- sary sum did not on the facts of the case consti- tute such a special circumstance under r. 113 of the Bankruptcy Eules, 1883, as to justify the court in granting the application. Sobertson, In re, 2 M. B. E. 117—0. A. Increasing Amount of Deposit.] — The deposit paid by a bankrupt on entering a bank- ruptcy appeal was ordered to be increased, on the ground that he had been already engaged in protracted and uniformly unsuccessful litigation with the respondents respecting the matters in question. McHenry, In re, 17 Q. B. D. 361 ; 65 L. J., Q. B. 496 ; 35 W. E. 20— C. A. Security for Costa— Proof by Creditor resident Abroad.] — The court has no jurisdiction to order a creditor resident abroad, who is appealing fi'om the rejection of his proof by the trustee, to give security for the costs of such appeal. Izard, Ex parte, Vanderhaege, In re, 20 Q. B. D. 146 ; 58 L. T. 236 ; 36 W. E. 625 ; 5 M. B. E. 27 — Cave, J. 6. LEAVE TO APPEAL. When granted.] — Upon a question of fact the Court of Appeal will not give leave to appeal to the House of Lords. Miles, Ex parte, Isaacs, In re, 15 Q. B. D. 47— C. A. Where the sum at stake is not large and the court entertains no doubt as to the principle in- volved, leave to appeal to the Court of Appeal will not be given. WolwrhaTtipton Banking Company. Ex parte, Campbell, In re, 14 Q. B. D. 37— D'. To what Court application made.] — An appli- cation for leave to appeal under s. 2 of the Bankruptcy Appeals (County Court) Act, 1884, from the decision of a divisional court sitting as a court of appeal from a county court in bank- ruptcy, should be made in the first instance to a divisional court. Nicholl, Ex parte, Walker, In re, 1 M. B. E. 249— C. A. Such an application for leave to appeal ought to be made to the divisional court immediately after such divisional court has pronounced its decision. lb. From County Courts — Terms.] — In granting leave to appeal a county court judge ought not to limit or qualify his leave to appeal. Serjeant, Ex parte, Sandars, In re, 52 L. T. 516 — D. Amount involved under 50Z.] — Eule 111 (2) of the Bankruptcy EiUes, 1883, which provides that no appeal to the Court of Appeal shall be brought from any order relating to property when it is apparent from the proceeding that the money or money's worth involved does not ex- ceed 50Z., unless by leave of the court, was authorised by s. 127 of the Bankruptcy Act, 1883, taken in connexion with s. 104, sub-s. 2 ((?) : — Quaere, whether, even if a rule was made in excess of the power given by s. 127, it would, after it had been laid before Parliament and issued, acquire the force of a statute under s. 127 (2). Foreman, Expa/rte, Hann, In re, 18 Q. B. D. 393 ; 66 L. J., Q. B. 161 ; 55 L. T. 820 ; 35 W. E. 370 ; 4 M. B. E. 16— C. A. Beceiving Order rescinded — Summary Ad- ministration.] — On 2nd July, 1886, a receiving order was made against the debtor, and on 15th July, 1886, an order for the summary administration of the estate. On 10th Septem- ber, 1886, an application by the debtor to rescind the receiving order was allowed ; the petitioning creditor having appealed against such rescission, the objection was taken that no leave to appeal had been obtained, but the court allowed the appeal to proceed. Whether in such a case where the receiving order has been rescinded, an appeal by the petitioning creditor against the rescission is an appeal against an order made in a summary administration for 207 BA-NKRJJVTCY— Appeal. 208 which leave is necessary, Qusere. Baynes, Ex parte, Clarle, In re, 4 M. B. E. 80— D. In Small Bankruptcies.] — See cases ante, col. 203. 7. COSTS. Appearance of Trustee. ] — A trustee in bank- ruptcy who is served with notice of an appeal, and who appears, and only asks for his costs, will not be allowed his costs of appearance. Ardeih, Ex parte. Arden, In re, or Arden v. Beacon, 14 Q. B. D. 121 ; 51 L.T. 712 ; 33 W. R. 460 ; 2 M. B. R. 1— D. Official Receiver appearing.] — As a general rule, and in the absence of special circumstances, the official receiver ought not to appear upon the hearing of an appeal, unless he is required to do so by the court, and, if he appears unnecessarily, he will not be allowed any costs. He is not justified in appearing merely to defend his report. Reed, Ex parte. Reed, In re, 17 Q.B. D. 244 ; 55 L. J., Q. B. 244 ; 34 W. E. 493 ; 3 M. B. E. 90— C. A. As a general rule the official receiver, though served with a, notice of appeal, ought not to appear on the hearing, unless there are special circumstances which he desires to bring before the court, and, in the absence of special circum- stances, he will not be allowed his costs of appearance. Bixon, Ex parte, Bixon, In re, 13 Q. B. D. 118 ; 53 L. 3., Ch. 769 ; 50 L. T. 414 ; 32 W. E. 837 ; 1 M. B. E. 98— C. A. The oificial receiver will not be allowed his costs of appeal, even if he was served with notice of appeal, unless his appearance was necessary. WTiite, Ex parte, ^V^lUe.In re, 14 Q. B. D.600— C. A. Creditors appearing.] — Creditors served with notice of appeal by a bankrupt, from an order granting him a conditional discharge, will not be allowed their costs of appearing on the hearing of the appeal when the official receiver or trustee appears. Salaman, Ex parte, Sola- man, In re, 14 Q. B. D. 936— C. A. Official Eeoeiver — Successful Appellant — Priority.] — An order made by a county court, on the application of the official receiver, setting aside a payment made by a debtor as a fraudulent preference, having been (reversed on appeal : — Held, that the costs of the appellants and of the official receiver in both courts must be paid out of the debtor's assets, the costs of the appellants having priority. Leicestershire Banking Com- pany, Ex parte. Dale, In re, 14 Q. B. D. 48 ; 38 W. E. 354— D. PreliminaryObjection—Notiee.]— The solicitor of a respondent, if he is aware of a preliminary objection to an appeal, ought, as a matter of courtesy, to inform his opponent of it without delay, but the omission to do so is not, if the appeal is dismissed on the preliminary objection, a sufficient reason for depriving the respondent of the costs of the appeal. Speight, In re (13 Q. B. D. 42), and Blease, Ex paHe (14 Q. B. D. 123), not followed. Shead, Ex parte, Mundy, In re, 15 Q. B. D. 338 ; 53 L. T. 655 ; 2 M. B. R. 227— C. A. When the respondent to an appeal intends to take a preliminary objection he should give notice to the appellant of his intention so to do. If no such notice is given and the objection prevails, the appeal will be dismissed without costs. Broohs, Ex parte, Speight, In re, 13 Q. B. D. 42 — Cave, J. A respondent to an appeal who intends to rely on a preliminary objection ought to give notice to the appellant of his intention so to do. If he does not, and the objection is successful, the appeal will be dismissed without costs. Speight, In re (13 Q. B. D. 42) followed. Blease, Ex parte, BUnhhorn, In re, 14 Q. B. D. 123 ; 33 W. E. 432 ; 1 M. B. R. 280— D. Shorthand Writer's Notes.] — As a general rule the application to allow the costs of short- hand writer's notes of evidence as the costs of a successful appellant should be made at the hearing, but the mere omission to make the application then does not prevent its being made subsequently : — Semble, if the application is made on a subsequent day and is successful, the court ought to make the applicant pay the costs of the application, as they were caused by his own omission. Steed, Ex parte, Bay, In re, 33 W. E. 80 ; 1 M. B. E. 251— Cave, J. By whom Appointed.] — -Where the short- hand writer is appointed at the instance of one party, he cannot recover the costs of the notes un- less under special circumstances. Where the appointment is made by both parties, the costs should be paid by the unsuccessful party. li. 8. OTHEE POINTS. Solicitor's Right of Audience.] — The right of audience given to a solicitor in bankruptcy matters by s. 151 of the Bankruptcy Act, 1883, is limited to the High Court, and does not extend to the Court of Appeal. Russell," Ex parte, Elderton, In re, 4 M. B. E. 36— C. A. See Rey- nolds, Ex parte, Barnett, In re, ante, col. 193. Application to Stay Proceedings — To what Court made.] — Where an application was made to a divisional court of which the judge in bankruptcy was not a member, for an order to stay proceedings pending an appeal from an order of a county court judge : — Held, that the divisional court had no jurisdiction to hear or decide the application. Mooii, In re, 3 M. B. E. 74— D. Refusal of Registrar to carry out Order — Procedure to compel Obedience.] — Upon appeal from a county court in a bankruptcy proceeding, the divisional court allowed the appeal, and ordered money, which had been paid into the county court to abide the result of the appeal, to be paid out to the appellant. The divisional court also gave leave to appeal to the Court of Appeal, but made no order for a stay of pro- ceedings. The registrar of the county court having refused to pay out the money untU the time for appealing to the Court of Appeal had elapsed : — Held, that the refusal was unjustifi- able, but that, the registrar being an officer of the county court, the divisional court had no jurisdiction over him personally to enforcecom- pliance with the order. Croydon County Cowt [Registrar), Ex parte, or Brown, Ex parte, 209 BAEEISTEE. 210 Wise, In re, 17 Q. B. D. 389 ; 55 L. J., Q. B. 362 ; 54 L. T. 722 ; 34 W. E. 711 ; 3 M. B. K. 174— C. A. XX. ADMINISTRATION OF INSOLVENT ESTATES IN BANKETTPTCY. Jurisdiction — Order affecting Bights of Stranger.] — ^A county court judge Bitting in bankruptcy has no jurisdiction, unless by con- sent, to order payment to the official receiver of money received under a garnishee order attach- ing a debt due to the estate of a deceased debtor, which is being administered according to the law of bankruptcy under s. 125 of the Bankruptcy Act, 1883. Mils, Hx parte, Orowther, In re, 20 Q. B. D. 38 ; 57 L. J., Q. B. 57 ; 58 L. T. 115 ; 36 W. E. 189 ; 4 M. B. E. 305— D. To order Transfer.] — Where a testator, having previously carried on business in England, was for more than six months previous to his death an inmate of a lunatic asylum in Scotland, and died insolvent, and an administration action was commenced by a creditor ; on motion, on behalf of the plaintiff : — Held, that the court had juris- diction, under sub-s. 4 of s. 125 of the Bank- ruptcy Act, 1883, to make an order transferring the proceedings to the county court within the jurisdiction of which the testator formerly car- ried on his business. SenJiouse v. Mawson, 52 L. T. 745— Y.-C. B. Transfer when Ordered.] — The power given by s. 125 of the Bankruptcy Act, 1883, to transfer the proceedings in an action brought for the administration of an insolvent estate to the Court of Bankruptcy, is a discretionary one, and it will not be exercised where the estate is small, the number of creditors is small, and consider- able expense has been already incurred in chambers in the proceedings under an adminis- tration'judgment : — Semble, that an application for transfer can only be made by a creditor who has absolutely proved his debt. Weaver, In re, Higgs v. Weaver, 29 Ch. D. 236 ; 54 L. J., Ch. 749 ; 52 L. T. 512 ; 33 W. E. 874— Pearson, J. Order, how made — Time.] — When proceedings for the administration of a deceased debtor's estate have been commenced in the Chancery Division of the High Court, and an order has been made, under sub-s. 4 of s. 125 of the Bankruptcy Act, 1883, for the transfer of the proceedings to the court exercising jurisdiction in bankruptcy, that court may make an adminis- tration order on an ex parte application by a creditor, but the order cannot be made until the expiration of two months froih the date of the grant of probate or letters of administration, unless with the concurrence of the legal personal representative, or unless it is proved that the debtor committed an act of bankruptcy within three months prior to his decease. May, Ex paHe, May, In re, 13 Q. B. D. 552 ; 1 M. B. E. 232— D. Under s. 125 of the Bankruptcy Act, 1883, a transfer to the county court may be ordered after judgment and further subsequent proceed- ings in the administration action. Any right of retainer of the legal personal representative, when the transfer will be for the benefit of the creditors generally, cannot be permitted to stand in the way of a transfer being ordered, Torlt, In re, AtMnson v. Powell, 3C Ch. D. 233 ; 56 L. J., Ch. 552 ; 56 L. T. 704 ; 35 W. E. 609— Stirling, J. Discovery — Order for Examination of Debtor's. Widow. ]— The provisions of s. 27 of the Bank- ruptcy Act, 1883, do not apply to an adminis- tration of the estate of a person dying insolvent under s. 125 of the Act. There is no power in cases of such administration, either under s. 27 or under r. 58 (Bankruptcy Eules, 1883), to summon a person to be examined for the purpose of discovery of the deceased debtor's estate, Hewitt, Ux parte, Hewitt, In re, 15 Q. B. D. 159 ; 54 L. J., Q. B. 402 ; 53 L. T. 156 ; 2 M. B, E. 184— D. Avoidance of Voluntary Settlements.] — Sec- tion 47 of the Bankruptcy Act, 1883, which avoids certain voluntary settlements executed by a bankrupt, does not apply to the administration of the estate of a deceased insolvent by the court of bankruptcy under s. 125 of the Act. Official Receiver, Ex parte, Gould, In re, 19 Q. B. D. 92 ;. 56 L. J., Q. B. 333 ; 56 L. T. 806 ; 35 W. E. 569 ; 4 M. B. E. 202— C. A. Savings Bank Officer— Priority.] — The actuary of a saviugs bank died insolvent, owing the bank money received in his capacity of actuary : — Held, that in an action in the Chancery Divi- sion for the administration of the actuary's- estate the bank would be entitled to priority by virtue of s. 14 of the Savings Banks Acts, 1863 ; but that s. 40 of the Bankruptcy Act, 1883, takes away the right to such priority in bankruptcy proceedings. Section 125 of the Bankruptcy Act, 1883, discussed. Williams, In re, Jones v. Wil- liams, 36 Ch. D. 573 ; 57 L. J., Ch. 264 ; 57 L. T. 756 ; 36 W. E. 34— North, J. Landlord's Claim for Bent — What Arrears.] — Upon the construction of ss. 42 and 125 of the Bankruptcy Act, 1883, an order obtained in the Chancery Division by a creditor for administra- tion of a deceased debtor's estate, not followed by any proceedings in bankruptcy, is not equiva- lent to or included in the term " order of adju- dication" (s. 42) so as to limit the power of the ■ landlord, or other person to whom rent is due from the deceased person's estate, to recover by distress one year's rent only accrued due prior to the date of the administration order. Pry- man's Estate, In re, Fryman v. Fryman, 38 Ch. D. 468 ; 57 L. J., Ch. 862 ; 58 L. T. 872 ; 36 W. E. 631— Chitty, J. BARRISTER. Conduct of Action — Authority to Compro- mise.] — On the trial of an action for malicious prosecution, the defendant's counsel, in the ab- sence of the defendant and without his express authority, assented to a verdict for the plaintiff for 350Z. with costs upon the understanding that all imputations against the plaintiff were with- drawn : — Held, that this settlement was a matter which was within the apparent general authority of counsel, and was binding on the defendant. 211 BASTAEDY. 212 MattJicm V. Munster, 20 Q. ?.. D. 141 ; 57 L. J., Q. B. 49 ; 57 L. T. 922 ; 36 W. R. 178 ; 52 J. P. 260—0. A. Undertaking not to Appeal.] — Counsel has authority to undertake on behalf of his clients not to appeal, and not the less so after the judge has given judgment on the merits. West Devon Great Consols Mine, In re, 38 Ch. D. 51 ; 57 L. J., Ch. 850 ; 58 L. T. 61 ; 36 W. E. 342— C. A. Admission of Facts — Proof dispensed with.] — At the trial of an action counsel for one of the parties made an admission that an order made by the Court of Session in Scotland, nomi- nating the curator of a lunatic subscriber to the Customs Annuity and Benevolent Fund on be- half of the lunatic as " nominee," had the same effect as if it had been a nomination made by the subscriber himseU (being sane), but the judge did not consider himself bound by that admis- sion, and held that the Scotch court had no juris- diction to appoint a "nominee " on behalf of the lunatic subscriber : — Held, that as the question of the jurisdiction of the Scotch court to mate such an order was a question of fact, proof of which, like proof of other facts, might be dis- pensed with by the admission of counsel, the judge was wrong in going into that question. Urquhart v. BrdterfieW , 37 Ch. D. 357; 57 L. J., Ch. 521 ; 57 L. T. 780 ; 36 W. E. 376— C. A. Jurisdiction of Court to Commit — Untrue Affidavits.] — On a motion to commit a barrister and counsel in a case to prison for contempt of court, the court held that it is the barrister's duty when he knew affidavits were about to be used which amounted to chicanery to disclose the fact, and that his fault did not consist in not throwing up his brief, but in having made him- self a party to a fraud, by conspiring with others in inducing a person to make these affidavits, which were used to delude the court. lAnwood v. Andrews, 58 L. T. 612— Kay, J. In Canada — Becoveriug Fees — Petition of Bight.] — According to the law of Quebec, a member of the bar is entitled, in the absence of special stipulation, to sue for and recover on a quantum meruit in respect of professional ser- vices rendered by him, and may lawfully con- tract for any rate of remuneration which is not contra bonos mores, or in violation of the rules of the bar. Where a member of the bar of Lower Canada (Quebec) was retained by the govern- ment as one of their counsel before the Fisheries Commission sitting in Nova Scotia : — Held, that In absence of stipulation to the contrary, express or implied, he must be deemed to have been employed on the usual terms according to which such services are rendered, and that his status in respect both of right and remedy was not affected either by the lex loci contractlis or the lex loci solutionis. Kennedy v. Srown (13 C. B., N. S. 677) commented upon. Reg. v. Doutre, 9 App. Gas. 745 ; 53 L. J., P. C. 84 ; 51 L. T. 669— P.O. Held, further, that the Petition of Eight Tucker, supra. Transfer in Course of Business.] — Semble, a, pledge by a trader of stock-in-trade which he has bought on credit, and not paid for, is not a " transfer in the ordinary course of business of his trade or calling," within the exception con- tained in 8. 4 of the Bills of Sale Act, 1878. Close, Ex parte. Hall, In re, 14 Q. B. D. 386 ? 54 L. J., Q. B. 43 ; 51 L. T. 795 ; 33 W. R. 228— Cave, J. Where Grantor a Joint Stock Company.]— Bills of sale given by joint stock companies are within the Bills of Sale Act, 1882. Cvmningham S; Co., In re, Attenborough's Case, 28 Ch. D, 682 ; 54 227 BILLS OF SA1.E— Registration. 228 L. J., Gh. 448 ; 52 L. T. 214 ; 33 W. R. 387— Pearson, J. Dock Warrant — Possession given to Grantee.] — Where a security on goods with possession is given, the security is valid without registration. A wharfinger's warrant was indorsed over to a lender with an accompanying memorandum of terms of security including a power of sale : — Held, that there was a good security which did •not require registration. lb. " Trade Machinery " — " Fixed Motive Powers and fixed Power Machinery."] — The effect of s. 5 of the Bills of Sale Act, 1878, is to prevent the articles which by it are excluded from the defini- tion of " trade machinery " from being " personal •chattels " for any of the purposes of the Act. Consequently, an assignment of certain " fixed motive powers and fixed power machinery " does not require registration, although such machinery is fixed to the surface only and separated by intervening strata from the minerals charged. Topham v. Greenside Glazed Fire Brick Com- pany, 37 Ch. D. 281 ; 57 L. J., Ch. 583 ; 58 L. T. 274 ; 36 W. E. 464— North, J. Mortgage of Land not mentioning Fixtures — Tower of Sale.] — The owner of land and build- ings which he used for the purposes of his busi- ness, and in which there was fixed machinery ibelonging to him, being " trade machinery " within the meaning of the Bills of Sale Act, 1878, mortgaged them in fee without anygeneral words or any reference to fixtures or machinery. By the mortgage deed it was agreed that the powers in s. 19 of the Conveyancing and Law of Property Act, 1881, should be exercisable with- out such notice as required by the act. After the death of the mortgagor, his creditors insisted that this mortgage was void as to the trade machinery under the Bills of Sale Acts, 1878 .and 1882 : — Held, that the mortgage was not an assignment of the trade machinery, since the trade machinery only passed by virtue of being affixed to the freehold, and that the deed did not, apart from the power of sale, give a power to seize or to take possession of the trade machinery as chattels, since the mortgagee could only take possession of them by taking possession of the freehold : -that the power of sale did not authorize the mortgagee to sell the trade machinery apart from the freehold : and, therefore, that the instrument was not a bill of sale within the meaning of the acts, and gave a valid security on the trade machinery. Yates, In re, Batcheldor or Batohelor v. Tates, 38 Ch. D. 112 ; 57 L. J., Ch. 697 ; 59 L. T. 47 ; 36 W. E. 563— C. A. Part of Machinery.] — By an unregistered deed made in 1875, the owners of a mill mortgaged in fee to the plaintiffs the miU, together with all the engines, plant, machinery, and gear de- scribed in the schedule. The schedule included certain driving belts which connected the power machinery with certain machines which were so affixed as to be part of the realty. The machines could not be worked without the belts, which would only fit other machines of nearly the same size. These belts were passed round the shafting and then laced together, and could not be removed from the shafting without being unlaced. They could be slipped off the machines when the machines and shafting were not in motion. The mortgage contained no power to the mortgagee to deal with the belts separately from the freehold. The defendant, a trustee in bankruptcy of one of the mortgagors, removed the belts. In an action against him by the plaintiffs to recover the value : — Held, that the belts being essential parts of the fixed machines, formed part of the realty, and as such passed under the mortgage deed, which, therefore, did not require registration under the Bills of Sale Act, 1854. Longbottom \. Berry (5 L. E., Q. B. 123) followed. Slieffield and South Torkskire Permanent Building Society v. Sarrison, 54 L. J., Q. B. 15 ; 51 L. T. 649 ; 33 W. E. 144— C. A. Growing Crops.] — By s. 6 of the BiUs of Sale Act, 1882, a bill of sale is valid as to growing crops separately assigned : — Held, that this means separately from the laud, and that a bill of sale which assigns growing crops together with other articles is valid. Roberts v. Roberts, 18 Q. B. D. 794 ; 53 L. J., Q. B. 313, ; 50 L. T. 351 ; 32 W. E. 605— C. A. Attornment Clause— Mortgage.] — By s. 6 of the Bills of Sale Act, 1878, " Every attornment, instrument, or agreement, not being a mining lease, whereby a power of distress is given, or agreed to be given, by any person to any other person by way of security for any . . . debt or advance, and whereby any rent is reserved or made payable as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purpose of such security only, shall be deemed to be a bill of sale within the meaning of this act, of any personal chattels which may be seized under such power of dis- tress ; provided, that nothing in this section shall extend to any mortgage of any estate or interest in any land, tenement, or hereditament, which the mortgagee, being in possession, shall have demised to the mortgagor as his tenant at a fair and reasonable rent " : — Held, that an attornment clause in a mortgage of land, whereby, by reason of the relation of landlord and tenant thereby created, a power of distress is given to the mortgagee as security for the pay- ment of interest in arrear, is a bill of sale within s. 6, and that the proviso applies only to cases in which the mortgagee, having previously taken possession of the mortgaged premises, has de- mised them to the mortgagor, and not ta a case where the demise is created by ths, mortgage deed itself. Dicta in Hall v. Comfort (18 Q. B. D. 11) disapproved, Kennedy, Ba; parte, Willis, In re, 21 Q. B. D. 384 ; 57 L. J., Q. B. 634 ; 59 L. T. 749 ; 36 W. E. 793 ; 6 M. B. R. 189— C. A. An attornment clause in a mortgage made by way of demise is not rendered void by the Bilfe of Sale Acts, 1878 and 1882. Hall v. Comfort, 18 Q. B. D. 11 ; 56 L. J., Q. B. 185 ; 55 L. T. 550 ; 35 W. E. 48— D. Public-house — Power to Distrain for Moneys due for Goods supplied.] — An agree- ment for the letting of a public-house, whereby the tenant agreed not to take or sell any malt liquors or mineral waters other than, such as should be purchased of the landlord, contained a proviso that if during the tenancy any sum or sums of money should be due from the tenant to the landlords in respect of any malt liquors or 229 BILLS OF SAIE—Eegistratim. 230 mineral waters supplied by them to him, and such sum or sums should remain unpaid for the space oJE twenty-four hours after a demand in writing for payment thereof had been left upon the premises, it should be lawful for the land- lords to enter and distrain upon the premises in respect of the amount due, &o. : — Held, that the agreement required registration as a bill of sale. Pulbrooh v. Ashby, 56 L. J., Q. B. 376 ; 35 W. E. 779— Denman. J. '■ Assurance of personal Chattels " — Sale of Goods — Entry in Auctioneer's Book.] — Where a contract for sale of goods within s. 17, of the Statute of Frauds is valid solely by virtue of a memorandum in writing, such memorandum is an assurance of personal chattels within the BiUs of Sale Act, 1878. Roberts, In re, Evans v. Roberts, 36 Ch. D. 196 ; 56 L. J., Ch. 952 ; 57 L. T. 79 ; 35 W. B. 684 ; 51 J. P. 757— Kay, J. At a sale of farm produce by auction, W. bought a stack of hay for iOl. 5s. The auctioneer's clerk signed the name of W. as purchaser in the auctioneer's book, which was also signed by the auctioneer, and contained a copy of the conditions of sale, and specified the lot and the price. No part of the purchase-money was paid, one of the conditions being that the purchaser was to have six months' credit, and the whole of the hay remained on the premises of the vendor and in his apparent possession. The entry in the auctioneer's book was not registered as a bill of sale under the Bills of Sale Act, 1878. The hay was seized in execution under a judgment obtained by creditors of the vendor r^Held, that as the sale would have been void under s. 17 of the Statute of Frauds but for the memorandum of the contract contained in the auctioneer's book, such memorandum was an assurance and & bill of sale under the Bills of Sale Act, 1878, and therefore void as against the execution creditors for want of registration. lb. Lien or Charge for Fnrchase-money. ] — A testator, who died in 1867, bequeathed all his property to his wife and two other persons upon cer^iu trusts, and appointed them his executors, and empowered them to carry on his business of a wine merchant, with a. direction that, on his youngest son attaining twenty-one, his sons should successively have the option of purchasing the business upon certain terms. The widow alone proved the will, and carried on the busi- ness until 1873, when a suit was instituted to administer the estate, and the business was con- tinued under the direction of the court. In December, 1880, the widow died, having by her will appointed J. (a son of the testator) and one C. her executors, who were then made defendants to the administration action. In March. 1880, -the youngest son attained twenty-one, and shortly afterwards J. (the other sons not desiring to purchase) ofEered to purchase the business as from the 30th of November, 1 880, for 10,329Z. 18«. The offer was accepted and sanctioned by the court, and the arrangement was embodied in an agreement dated the 15th September, 1882, which provided for the payment of the purchase- money with interest at a future time, and con- tained a declaration that J. and C, or other the trustees of the will of the testator, should have a lien or charge upon the business and effects agreed to be sold for the purchase-money and interest, and that if default should be made in payment of the purchase-money and interest at the time appointed, or if J. should become bank- rupt, then the same might be recovered by the said trustees by action at law. From the date of this agreement J. carried on the business as his own until October, 1885, when he was adju- dicated a bankrupt. At this time the purchase- money was unpaid, and there still remained in specie certain wines and oflSce furniture, which formed part of the testator's estate, and which were sold by arrangement with the trustee in bankruptcy for 6322. 18s. C. claimed this sum as representing trust chattels which he was en- titled to follow : — Held, that under the agree- ment the property in the chattels passed to J. ; that the clause in the agreement conferring a lien or charge for the purchase-money operated as a bill of sale within sects. 4, 8, of the Bills of Sale Act, 1878, and, not having been registered, was void as against J.'s trustee in bankruptcy ; and therefore that 0. was not entitled to the money. Coburn v. Collins, 35 Ch. D. 373 ; 56 L. J., Ch. 504 ; 56 L. T. 431 ; 35 W. E. 610— Kekewich, J. " Beceipt for Purchase -money."] — Where a receipt was given for 801. as the purchase-money of 60,000 bricks, which remained in the posses- sion of the seller : — Held, a document needing registration under the Bills of Sale Act, 1878. Snell V. Heighton, 1 0. & E. 95 — Grove, J. Document not constituting Contract. ] — By the 3rd section of the Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), that Act applies to every bill of sale whereby the holder or grantee has power to seize or take possession of any personal chattels comprised in or made subject to such bill of sale, and by the 4th section the expression " bill of sale " shall include receipts for purchase moneys of goods. On the 4th March, 1884, A. paid B. 200T. for the purchase of his furniture, taking at the time of the purchase and payment a receipt for the purchase-money. The furniture remained in the possession of B. until the 15th March, 1884, when A. removed it to a warehouse, paying for the removal and warehousing. On the 26th March, A. again removed it to a house which she let to B. from the 29th March, together with the furniture therein. On the 14th Novem- ber the furniture was taken in execution under a judgment obtained against B. in proceedings commenced in July : — Held, in an interpleader issue, that the purchase of the furniture being a bonS. fide transaction, the claimant had a good title thereto apart from the receipt, and the receipt was therefore not a bill of sale within the meaning of the 4th seetion of the Bills of Sale Act, 1878, and did not require attestation and registration thereunder. Preece v. Gilling, 63 L. T. 763— D. Where, upon an oral agreement by which title to a personal chattel was given by way of se- curity for an advance, the grantor of such chattel signed a " receipt " which was not intended to and did not express the contract between the parties :— Held, that such document, not being an assurance, was not a bill of sale within the 4th section of the Bills of Sale Act, 1878 ; and that, the grantee in possession of the chattel under such agreement being able to defend his possesei >n without reference to such document, his title was not affected by the provisions of the I 2 281 BILLS OF SALE— Registration. 232 Bills of Sale Acts. Newlove t. Shrewsbury, 21 Q. B. D. 41 ; 57 L, J., Q.B. 476 ; 36 W. B. 835— C. A. " Inventory with Receipt " — Transaction com- plete without Document. ] — By s. i of the Bills of Sale Act, 1878, it is provided that the " ex- pression ' bill of sale ' shall include bills of sale, assignments, transfers, declarations of trust with- out transfer, inventories of goods with receipt thereto attached, or receipts for purchase-moneys of goods, and other assurances of personal chat- tels." Furniture, which was the property of C, was deposited in a warehouse in the name of J. , who paid the warehouse charges. C. subsequently agreed to sell the furniture to J. and E. for 551., and they sent C. a cheque for that amount. 0. then sent them a list of the furniture, with a receipt written at the end, and the furniture was shortly afterwards sent to them from the ware- house, the delivery order to the warehouse being signed by J. : — Held, that there had been a perfect and complete transaction of purchase and sale, by which J. and E. acquired a good title to the furniture, independently of the list and receipt, and that the document, therefore, was not a bill of sale within the meaning of the Bills of Sale Act, 1878. Shepherd v. Pullrooli, 69 L. T. 288—0. A. The goods of B. were seized by the sheriff under a writ of fi. fa., issued by B., and were sold by privatexontract to E., who agreed to let them to B.'s wife on certain terms. On com- pletion of the sale the sheriff gave B. an inven- tory of the goods, and a receipt for the purchase- money. These documents were not registered under the Bills of Sale Act, 1878. B. remained in possession of the goods, which were afterwards seized by the sheriff under a writ of fi. fa., issued by H. : — Held, that E. had a good title to the goods independently of the inventory and receipt, that those documents did not constitute a bill of sale within the meaning of the Bills of Sale Acts, and that B. was entitled to the goods as against H. Haydon v. Brown, 59 L. T. 810 — C.A. Invoice and Beceipt — Hire and Purchase Agreement,] — The B. Company, being in want of money, and being in possession of certain waggons in which they had an interest, applied to the respondents, who agreed to buy the waggons for 1,000?., and advanced that sum, 257Z. thereof being paid to the owners of the waggons, and the rest, 743?., to the B. Company, The respondents received from the B. Company an invoice for the waggons and a receipt for the 743?., and from the owners of the waggons a receipt for the 257?. At the same time the respondents leased the waggons to the B. Com- pany for three years, at a yearly rent, payable quarterly, and calculated to replace the 1,000?. with seven per cent, interest, upon the terms that if all the payments were duly made the B. Com- pany should have the option of purchasing the waggons at the end of the lease for a nominal sum, and that if the rent was not duly paid after demand the respondents should be entitled to re- possess and enjoy the waggons as in their former estate, and that the agreement should thereupon cease and determine. The B. Company having made default in payment of the rent, the re- spondents claimed the waggons from a railway company into whose possession they had come, but were resisted on the ground that the trans- action was void under the Bills of Sale Acts, 1878 and 1882, the documents not being in the form prescribed by those acts for bills of sale : — Held, that the transaction was in fact a pur- chase by the respondents, and was not a mort- gage by the B. Company or a security for the payment of money ; that the documents in ques- tion were not bills of sale within the Bills of Sale Acts, but that even if they had been the respon- dents had made an independent title to the waggons. Ma/)ichester, Sheffield, and Lincolnshire Railway v. North Central Waggon Com/pany, 13 App. Cas. 554 ; 58 L. J., Ch. 219 ; 59 L. T. 730 ; 37 W. K. 305— H. L. (E.). Hiring Agreement — Loan.] — In June, 1886, E. sold the furniture in his house to W. for 100?., who handed him a cheque for the money, but no receipt was given. Shortly afterwards, by an agreement in writing, W. agreed to let the furniture to E. until the 10th July then next, and E. agreed to pay a rent of 100?. for the use of it during the term, as follows : — 1?. (interest) on the signing thereof, 50?. on or before the 25th June then next, and 50?. on or before the 10th July then next. On breach of any of the stipulations, W. was to have power to remove and sell the furniture : — Held, that the agree- ment was - valid agreement for hire and not a bill of sale ; and that therefore the transaction was unaffected by the Bills of Sale Acts, 1878 and 1882. Redhead v. Westwood, 59 L. T. 293 —Kay, J. Assignment of, as Security.] — The debtors deposited with a' creditor as security for his debt certain hire-purchase agreements of furniture, and subsequently executed an assign- ment by which they assigned all their rights under the said agreements to the creditor. Due notice of the assignment was given to the hirers, and the debtors shortly afterwards became bank- rupt : — Held, that the assignment was merely the assignment of a chose in action and that it did not require to be registered as a bill of sale, and that the creditor was entitled to the benefits of the agreements as against the trustee in the bankruptcy. RawUngs, Ew parte, Davis, In re, 60 L. T. 157 ; 37 W. E. 142— Cave, J. Equitable Transfer of Existing Security.] — An agreement accompanying the deposit of a registered bill of sale by way of equitable sub- mortgage is a " transfer or assignment " of a bill of sale which by section 10 of the Bills of Sale Act, 1878, need not be registered. Tarqwaid, JSm parte, Parkers, In re, 14 Q. B. D. 636 ; 54 L. J., Q. B. 242 ; 58 L. T. 579 ; 33 W. E. 437 —C.A. Debentures of Company. ] — See Company (De- bentures). 2. EBCTIFICATION AND EENEWAL OF EBGISTEATION. Jurisdiction of Judge.] — In 1875, a post- nuptial settlement was executed and registered as a bill of sale. In 1880, it was re-registered, but owing to inadvertence the registration was not renewed in 1885. Upon this omission being discovered, application was made to a judge in 233 BILLS OF SAJJE— Registration. 234 chambers, and in October, 1886, leave under s. 14 of the Act of 1878 to renew the registration was granted. In November, 1886, the settlor became bankrupt. By an error in the aflBdavit filed in accordance with s. 11 upon the renewed regis- tration in October, 1886, such registration became void. Upon this being discovered in February, 1887, the trustees of the settlement applied ex parte to the same judge to allow the error to be amended and the register rectified. An order was made to this effect, the judge stating his in- tention to be that the parties should be put back in the position they would have been in, in October, 1886, had no mistake been made. Upon an application by the settlor's trustee in bankruptcy to discharge or vary this order for the benefit of the creditors : — Held, that s. 14 conferred fall power upon the judge in his dis- parte, or Clarli, Ex parte, Townsend, In re. 16 Q. B. D. 532 ; 55 L. J., Q. B. 137 ; 53 L. T. 897 ; 34 W. E. 329 ; 3 M. B. E. 36— C. A. See also Hilton v. Tucker, ante, col. 226. Indemnity to Surety — Amount and Time of Payment uncertain.] — A bill of sale given by the grantor, "in consideration of the grantee having at the request of the grantor become guarantee, and having signed a promissory note for the payment of a sum of i5l. obtained by the grantor from one B., of which S2l. or there- abouts is now owing," and further expressed to assign the chattels " by way of security for the payment of any moneys the grantee may be called upon to pay in respect of the guarantee, and interest thereon at the rate of five per cent, per annum," and the grantor further agreeing " to pay the principal sum, and any further sums, together with interest then due, by monthly payments of 21. on the first of every month," is void under s. 9 of the Bills of Sale Act (1878) Amendment Act, 1882, as not being in accord- ance with the form prescribed by the act by reason of both the amount payable by the grantee under the guaiantee and the time when such amount would become payable being un- certain. Sughes v. Little, 18 Q. B. D. 32 ; 56 L. J., Q. B. 96 ; 55 L. T. 476 ; 35 W. E. 36— C. A. Departure ,£rom Statutory Form — Extent of Avoidance.] — Where personal chattels and other property are mortgaged by a deed which is not made in accordance with the statutory form of a bill of sale, and is therefore, by s. 9 of the Bills of Sale Act, 1882, void as regards the " personal chattels," such deed is valid as to the other pro- perty comprised in it, if it is possible to sever the security upon the personal chattels from that upon the other property. Byrne, Ex parte, Burdett, In re, 20 Q. B. D. 310 ; 57 L. J., Q. B. 263 ; 58 L. T. 708 ; 36 W. E. 345 ; 5 M. B. E. 32 — G. A. A deed assigned to the grantee as security for a debt "the several chattels and things speci- fically described " in the schedule to the deed. The schedule coiBprised " personal chattels," and also a gas engine, which did not come within the definition of " persoiial chattels " contained in s. 4 of the Bills of Sale Act, 1878. The deed was riot niade in accordance with the statutory form of bill of sale contained in the schedule to the Bills of Sale Act, 1882 :— Held, that the deed was, under s. 9 of the Bills of Sale Act, 1882, void as to the " personal chattels," but that it reihaiiled valid as to the gas engine- Bavies v. Bees (17 Q. B. D. 408), explained and distinguished. lb. S. P. Banska Woollen Mills Co., In re, 21 L. E., Ir. 181— M. E. When a bill of sale includes a mortgage of chattels real, a deviation from the statutory form invalidates the instrumeiit so far only as- regards the chattels personal comprised in it,^ and does not avoid it so far as it is a mortgage of chattels real. Bavies v. Bees (17 Q. B, D. 408> distinguished. O'Bwyer, In re, 19 L. E., Ir. 1^ — Bk. Sect. 9 of the Bills of Sale Act, 1882, in avoiding a bill of sale which is not made in accordance with the form in the schedule to the Act, avoids it in toto — not merely as regards the personal chattels comprised in it-— so that a cove- nant contained in it for the payment by the grantee of the principal and interest thereby secured is rendered void as against him. Bavies V. Bees, 17 Q.B. D. 408 ; 55 L. J., Q. B. 363 ; 54 L. T. 813 ; 34 W. E. 573— C. A. Assignment of Chattels as " beneficial owner."] — A bill of sale of chattels given by way of security for the payment of money by which the grantor purports to assign the chattels " as beneficial owner," is not "in accordance" with the form given in the schedule to the Bills of Sale Act of 1882, and is therefore made void by s. 9 of that Act. Stanford, Ex parte. Barber^ In re, supra. Provision as to Possession of Instrument iifter Payment.] — A bill of sale given as a security for the payment of money contaiiied a stipulation that, as soon as the sums secured were satisfied^ the grantee would give a receipt in full of all demands and indorse a copy of the same on the bill of sale, but the bill of sale and any docu- ments signed by the grantor or any other person in relation to the loan should remain in the custody and be the property of the grantee : — Held, that this stipulation was a deviation from the statutory form given by the Bills of Sale Act, 1882, and that the bill of sale was therefore void. Watson V. Strickland, 19 Q. B. D. 391 ; 56 L. J., Q. B. 594 ; 35 W. E. 769— C. A. 2. TIME OF PAYMENT. Principal payable in one sum.] — A bill of sale given as security for money, by which the mort- gage debt is made payable in one entire sum, is " in accordance with " the statutory form. Watkins v. Evans, 18 Q. B. D. 386 ; 56 L. J., Q. B. 200 ; 56 L. T. 177; 35 W. E. 313—0. A. Instalments on Conditions. ] — A. was the grantor of a bill-of sale, by the terms of which he covenanted to pay the principal sum with interest thereon at a fixed rate upon the 1st June. The bill of sale further contained a cove- nant that, if the grantor did not break any of the covenants contained in the bill of sale, and paid to the grantee the principal suni and interest by monthly instalments, the first instal- ment being payable on the 1st June, the grantee would accept payment by such instalments. Upon the bankruptcy of A. the official receiver impugned the validity of the bill of sale : — -289 BILLS OF BAIjE— Statutory Form. 240 Held, that the condition in question was inserted in ease of the debtor, that the time of payment was certain and the bill of sale valid. Payne, JSx parte, Coton, In re, 56 L. T. 571 ; 35 W. B. 476; 4M. B. R. 90— D. Unequal Payment of Principal.] — The form in the schedule to the Bills of Sale Act (1878) Amendment Act, 1882, is, in respect of the cove- nant by the grantor to pay the principal sum secured " by equal payments " at specified times, directory and not obligatory ; so that a covenant to pay the principal sum by unequal payments at the specified times does not render a bill of sale void. Raiblings, Ex parte, Cleaver, In re, 18 Q. B. D. 489 ; 56 L. J., Q. B. 197 ; 56 L. T. 693 ; 35 W. E. 281— C. A. Payment UantMy — ^Whole Amount remaining Unpaid to be Due on Default.] — A bill of sale of personal chattels granted in 1884 to secure 80Z. stated the stipulated times or time of payment of principal and interest as " by equal monthly pay- ments of 8Z., the first payment to be made on the 1st of March next, but if default be made in any payment when it becomes due then the whole of the principal unpaid and the interest then due shall be at once payable " : — Held, that the bill of sale was in accordance with the form in the Bills of Sale Act (1878) Amendment Act, 1882. lAimley v. Simmons, 34 Ch. D. 698 ; 56 L. J., Ch. 134 ; 35 W. K. 422— C. A. Time must be Certain.] — See Hughes v. Little, supra, and cases infra. Payment upon Demand.] — A bill of sale, given by way of security for payment of money, con- tained an agreement by the grantor to pay the sum advanced and interest upon demand made in vrriting, and gave power to the grantee to seize and sell the goods on default in payment on demand in writing :— Held, that the agreement to pay the money on demand was not an agree- ment to pay it at a stipulated time in accordance with the form in the schedule to the Bills of Sale Act (1878) Amendment Act, 1882, and that therefore the bill of sale was void by s. 9 of that act. Setherington v. Grooms, 13 Q. B. D. 789 ; 53 L. J., Q. B. 577 ; 51 L. T. 412 ; 33 W. R. 103 — C. A. Semble, the sum secured should be made pay- able on a specified day, and a bill of sale making it payable on demand is contrary to such form. Melville v. Stringer, 13 Q. B. D. 392 ; 53 L. J., 7ie?-s Act 294 Q. B. D. 505 ; 53 L. T. 345 ; 5 Nev. & Mac. 28— D. Lien— Bight of Bailway to Detain for non- payment.] — A railway company claimed under the Railways Glauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), s. 97, to detain waggons belonging to the respondents for tolls due from the B. Company for the carriage of goods in the waggons : — Held, that the claim -6y, 1 1 App. Cas. 619 ; 55 L. J., P. C. 66 ; 55 L. T. 532— P. C. Legislature — Powers of — Duties levied under Order in Council.] — A colonial legislature is not a delegate of the Imperial legislature. It is restricted in the area of its powers, but within that area it is unrestricted. Therefore the Customs Regulation Act of 1879, s. 133, is within the plenary powers of legislation con- ferred upon the New South Wales Legislature by the Constitution Act (scheduled to 18 & 19 Vict. c. 54), ss. 1 and 45. Further, duties levied by an Order in Council issued under s. 133, are really levied by authority of the legislature and not of the executive. Under s. 133 " the opinion of the collector," whether right or wrong, autho- rises the action of the governor. Powell v. Apollo Candle Company, 10 App. Cas. 282 ; 54 E. J., P. C. 7 ; 58 L. T. 638— P. C. Legislative Assembly — Kember — Power of Suspension.] — The respondent having entered the chamber of the New South Wales Assembly, of which he was a member, within a week after it had passed a resolution that he be " suspended from the service of the House," he was removed therefrom and prevented from re-entering it: — Held, in an action of trespass, that the resolution must not be construed as operating beyond the sitting during which the resolution was passed. Ba/rton v. Taylor, 11 App. Cas. 197 ; 55 L. J., P. C. 1 ; 55 L. T. 158— P. C. Held, further, that the standing order of the Legislative Assembly adopting so far as is appli- cable to its proceedings the rules, forms, and usages in force in the British House of Commons, and assented to by the Governor, was valid, but must be construed to relate only to such rules, forms, and usages as were in existence at the date of the Order. The powers incident to or inherent in a Colonial Legislative Assembly are " such as are necessary to the existence of such a body and the proper exercise of the functions which it is intended to execute," and do not extend to justify punitive action, or uncondi- tional suspension of a member during the pleasure of the Assembly. Boyle v. Falconer (1 L. E., P. C. 328) approved. lb. Lunatic— Payment out of fund in English court to Master in Lunacy.] — In October, 1860, F. B., having become of unsound mind, was 319 COLONY — Particular Colonies. 320 admitted as an insane patient into the public hospital at P., in the colony of New South Wales, where she still remained. There had been no judicial declaration as to her unsound- ness of mind. In December, 1886, a fund to which the lunatic was entitled under the will of her father was paid into court under the provisions of the Trustee Relief Act. On a petition presented by the Master in Lunacy of New South Wales, and by the lunatic by her next friend, asking that the whole of the fund might be paid out to the master : — Held, that although by 42 Vict. No. 7 (the New South W ales statute relating to the insane) the master was empowered to collect the assets of the lunatic in the colony, no such power was given to him with reference to assets in England : that although the court had jurisdiction to direct payment to the master of the corpus, where such payment was shown to be necessary for the protection and maintenance of the lunatic, no such necessity had been shown in the present case : — Held, therefore, that the dividends only to arise from the fund should be paid to the master during the life of the lunatic, and so long as she should remain an insane patient in New South Wales. Sarlow, In re, Barton v. Spencer, 36 Ch. D. 287 ; 56 L. J., Ch. 795 ; 57 L. T. 95 ; 35 W. R. 737— C. A. Mortgage — Foreclosure — Banking Company, ] — There is nothing in the acts incorporating the Bank of New South Wales which takes away from them the power of foreclosing, the mort- gage in suit haviug been legally and properly taken by the bank, and in terms involving foreclosure. The statutory provision that the bank should hold any security which it had taken " for the purpose of reimbursement only and not for profit," could not take away the power of foreclosure expressly attached by statute to the mortgage. Banh of New South Wales V. Campbell, 11 App. Gas. 192 ; 55 L. J., P. C. 31 ; 54 L. T. 340— P. C. Uunicipality — Validity of Bye-law.]^-A bye- law made in pursuance of s. 153 of the Muni- cipalities Act, 1867, empowering municipal councils to make bye-laws for regulating the interment of the dead is not ultra vires, by reason of its prohibiting interment altogether in a particular cemetery, and thereby destroying the private property of the owners of burial places therein. Slattery v. Naylor, 13 App. Cas. 446 ; 57 L. J., P. C. 73 ; 59 L. T. 41 ; 36 W. R. 897— P. C. Bailway rates — "Colonial" wine. J — By the merchandise rates for the railways of a colony, issued under the sanction of the government, " colonial " wine was to be carried at a lower rate than other wine : — Held, that the word " colonial " could not be restricted to the produce of the colony in which the regulations were in force but included the produce of any colony. Commissioners for Railways v. Hyland, 56 L. J., P. C. 76 ; 56 L. T. 896— P. C. Tramways — Bight to run Steam Motors on.] — The commissioner for railways in New South Wales has, according to the true construction of the act 43 Vict. No. 25, s. 3, a legal right to run steam motors upon the tramway lines mentioned in the 2nd schedule thereto. Semble, s. 5 is sufficient to legalise the use of steam motors upon the other tramways governed by the said act. Commissioner for Railways v. Toohey, 9 App. Cas. 720 ; 53 L. J., P. C. 91 ; 51 L. T. 582— P. C. b. (Queensland. Gold Fields — Holders of Miners' Bights — Bights of Grown Lessees.] — In an action by the holders of " miners' rights " issued to them under the Gold Fields Act, 1874, and regulations made thereunder, to set aside the defendants' mining leases, also thereunder granted, on the grounds — (1) that they had been granted contrary to s. 11 within two years from the proclamation of the goldfield within which the leased areas were contained ; (2) that the for- malities prescribed by the regulations had not been observed by the defendants when applying therefor : — Held, that neither under the act nor otherwise had the plaintifis any right to interfere with the lessees' possession. Sect. 9 gave them no rights whatever as against lands let by the Crown, and no title to try the validity of Crown leases relating thereto ; and the whole tenor of the regulations is opposed to such con- tention. Osborne v. Morgan, 13 App. Cas. 227 ; 57 L. J., P. C. 52 ; 58 L. T. 597— P. C. In an action for substantially the same pur- pose as in the last preceding case, but with the additional allegation that the plaintifE had before action with the view of fortifying his title gone to the leasehold area for the purpose of taking possession of parcels of ground within it, and of working them as claims, but was prevented by the defendants : — Held, that this made no dif- ference, as such proceedings were unauthorized by the act, and could not set up a defective title. Williams v. Morgan, 18 App. Cas. 238 ; 58 L. T. 597— P. C. Member of Legislative Council — Non-attend- ance — Seat vacated.] — Where a statute provided that " if any legislative councillor shall for two successive sessions fail to give his attendance, without permission, his seat shall thereby become vacated ; " and a councillor absented himself during the whole of three sessions, having pre- viously obtained a permission for a year, which period of time in the event covered the whole of the first and part of the second session : — Held, that his seat was vacated. The per- mission did not cover two successive sessions. Attorney- General ^Queensland) v. Gibbon, 12 App. Cas. 442 ; 56 L. J., P. C. 64 ; 56 L. T. 239 —P.O. c. South Australia. Begistration Act— Priorities.] — Under Regis- tration Act, 5 Vict. No. 8, 3, a prior document of a registrable nature unregistered cannot convey a good title against a subsequent docu- ment of a registrable nature registered ; but there is nothing in the act to exclude a claim upon an unwritten equity, of which the sub- sequent registered purchaser has notice. White V. Neaylon, 11 App. Cas. 171 : 55 L. J., P. C. 25 I 54 L. T. 688— P. C. 321 COLONY — Particular Colonies. 322 d. Victoria. Action, Notice of.]' — An action against the Melbourne Harbour Trust Commissioners is an action brought against a "person" within the meaning of s. 46 of the Melbourne Harbour Trust Act ; and notice in -writing thereof com- plying in form or in substance with the require- ments of the section is necessary. Union Steam- ship Companij of Nno Zealand \. Mi-lbomiie Harbour Commissioners, 9 App. Gas. 365 ; 53 L. J., P. 0. 59 ; 50 L. T. 337 ; 5 Asp. M. C. 222 —P. C. Acts, Interpretation of.] — Remarks as to the effect upon interpretation of dividing an act into parts with appropriate headings. JEastcrn Coun- ties and London and Blaeltwall Railway Com- panies T. Marriage (9 H. L. C. 32) distinguished. Compensation— Lands taken Gompnlsorily — Set-off.] — -According to the true construction of the 35th section of the " Victorian Lands Com- pensation Statute, 1869," in assessing under the act compensation for land eompulsorily taken for a railway, the enhancement in value of the owner's adjoining lands may be set ofE against the amount allowed for damage thereto arising from such compulsory taking or severance ; but may not be allowed against the compensation for the land actually taken. Such " enhance- ment in value " includes that which arises from the use as well as the construction of the rail- way. Harding v. Board of Land and Works, 11 App. Gas. 208 ; 55 L. J., P. C. 11 ; 55 L. T. 225— P. C. Crown — -Binding Character of Statute on.] — The Victorian Statute, Crown Liability and Remedies Act, 1865 (28 Vict. No. 241), s. 17, does not affect the prerogative of the Crown when suing in this country. Oriental JBanJi Corporation, In re. The Crown, Ex parte, 28 Ch. D. 643 ; 54 L. J., Ch. 327 ; 52 L. T. 172— Chitty, J. Powers of Legislature — Costs of Action of Slander.]— The legislature of New South Wales has power to repeal the Statute of James (21 Jac. 1, c. 16), s. 6, and has impliedly done so by 11 Vict., No. 13, s. 1, which, according to its true construction, places an action for words spoken upon the same footing as regards costs and other matters as an action for written slander. Harris v. Dairies, 10 App. Gas. 279 ; 54 L. J., P. C. 15 ; 53 L. T. 601— P. C. Delivery of Solicitor's Bill.] — The Common Law Procedure Act of Victoria, by s. 389, provides that it shall be lawful for the court in any case to make an order for the delivery by any attorney of his bill of costs, and s. 396 provides that payment of such bill shall in no case preclude the court from referring such bill for taxation, provided the application for taxa- tion be made vrithin twelve months of payment : — Held, that the court may order a bill to be delivered under s. 389, though such bill may not be liable to taxation by reason of such application not having been made within twelve months of payment. Buffets v. MoEcoy, 10 App. Cas. 300 : 54 L. J., P. C. 25 ; 52 L. T. 633— P. C. e. West Australia. Notice-Bight of Resumption — Compensation.] — Where the crown has a power of resumption under the terms of its grant, and has given lawful notice in exercise of such power, such notice must not be deemed to be under s. 12 of the Railways Act of 1878 (entitling the parties affected to compensation under s. 14) ; secus where notice could not have been lawfully given except under this act. Thomas v. Sherwood, 9 App. Cas. 142 ; 53 L. J., P. C. 15 ; 50 L. T. 101— P. C. 2. Beitish Noeth Ameeica. Adverse Possession — Adjacent Owners — Acts of Ownership.] — The Civil Code of Lower Canada by s. 2251, provides that a person who in good faith acquires land by purchase pre- scribes the ownership thereof by effective posses- sion for ten years in virtue of his title. The appellant and respondent were purchasers of adjacent lots of land. The appellant marked off his boundary, and the respondent took posses- sion of his lot and occupied it without challenge for more than ten years : — Held, in a suit to settle the respective boundaries, that the marking out of the lot by the appellant did not constitute possession, and that possession by the respondent for more than ten years in good faith and in .virtue of his title perfected his right in compe- tition with the appellant. Bnnn v. Lareau, 57 L. J.,P. C. 108— P. C. Arbitration — Duties of Amiahles Composi- teurs.] — Arbitrators who are also appointed amiables compositeurs may, under art. 1346 of the Civil Code of Procedure, dispense with the strict observance of those rules of law the non- observance of which as applied to awards results in no more than irregularity ; they cannot be arbitrary in their dealings with the parties or disregard all law. Where such arbitrators in good faith obtained from one of the parties in the absence but to the knowledge of the other correct information as to the law bearing upon the case before them : — • Held, that that was not an irregularity which vitiated the award. Rolland v. Cassidy, 13 App. Cas. 770 ; 57 L. J.j P. C. 99 ; 59 L. T. 873— P. G. Barristers — Bights and Bemedies of.] — ^Ac- coiding to the law of Quebec, a member of the bar is entitled, in the absence of special stipula- tion, to sue for and recover on a quantum meruit in respect of professional services rendered by him, and may lawfully contract for any rate of remuneration which is not contra bonos iflores, or in violation of the rules of the bar. Where a member of the bar of Lower Canada (Quebec) was retained by the Government as one of their counsel before the Fisheries Commission sitting in Nova Scotia : — Held, that in absence of stipu- lation to the contrary, express or implied, he must be deemed to have been employed on the usual terms according to which such services are rendered, and that his status in respect both of right and remedy was not affected either by the lex loci contractus or the lex loci solutionis. Kennedy v. Brown (13 C. B., N. S. 677) com- mented upon. And further, that the Petition of Bight (Canada) Act, 1876, s. 19, sub-s. 3, doeS not in such case bar the remedy against the M 323 COLONY — Particular Colonies. 324 Crown by petition. Meg. v. Doutre, 9 App. Gas. 745 ; 53 L. J., P. C. U ; 51 L. T. 669— P. C. Contract — Consideration — Sale of Alleged Claim.] — There is no difference between the French law, which prevails in Lower Canada, and the English law, on the subject of the necessity that there should be valuable con- sideration for a contract. Any benefit to the assignee, or any loss to the assignor, is such a consideration ; and therefore the sale of an alleged claim against a railway company for services rendered, which, though not admitted, was not rejected by them, was held a sufficient consideration to support an action for the par- chase money. MeGreevy v. Russell, 56 L. T. 501 Quasi Contract — Commencement de Freuve. ] — Where a landowner has empowered his agent to aliene, and such agent has without a completed contract to sell allowed an intending purchaser to take possession of a plot, efEect substantial improvements in the reasonable expectation of obtaining a transfer on paying a proper price, and then transferred to the defendant, who in turn effected improvements : — Held, that such landowner has thereby laid himself under an obligation, such as in Civil Code, art. 1041, is called a quasi contract, to confirm the defen- dant's possession and title upon payment of the price thereof according to the rate ruling at the time of commencing the improvements with interest from that date. Commencement de preuve must be some written evidence which lends probability to that which is sought to be proved by oral evidence. Price v. Neault, 12 App. Cas. 110 ; 56 L. J., P. C. 29— P. C. Criminal law — Leave to Appeal.] — The rule of the Judicial Committee is not to grant leave to appeal in criminal cases except where some clear departure from the requirements of justice is alleged to have taken place : — Held, that 34 & 35 Viet. c. 28, which authorises the Parliament of Canada to provide for " the administration, peace, order, and good government of any terri- tory not for the time being included in any province," vests in that parliament the utmost elisoretion of enactment for the attainment of those objects. Accordingly, the Canadian Act, 43 Vict. c. 25, is intra vires the legislature. Riel V. Beg., or Reg. v. Riel, 10 App. Cas. 675 ; 55 L. J., P. C. 28 ; 54 L. T. 339 ; 16 Cox, C. C. 48 —P. C. Practice.]— S. 76, sub-s. 7, of 43 Vict. c. 25 (Canada), which prescribes that full notes of evidence be taken, is literally complied with when those notes are taken in shorthand, lb. Crown, Eights of— Priority of Payment.] — The Crown is bound by the two Codes of Lower Canada, and can claim no priority except what is allowed by them. Being an ordinary creditor of a bank in liquidation, the Crown is not entitled to priority of payment over the other ordinary creditors of the bank. HxeJuinge Banh of Canada v. Keg:, 11 App. Cas. 157 ; 55 L. J., P. C. 5; 54L. T. 802-P. C. Prior to the Codes, the law relating to pro- perty in the province of Quebec was, except in special cases, the French law, which only gave the King priority in respect of debts due from " comptables," that is, officers who received and were accountable for the King's revenues. Art. 1994 of the Civil Code must be construed according to the technical sense of "compta- bles." And Art. 611 of the Civil Procedure Code, giving to the Crown priority for all its claims, must be modified so as to be in harmony therewith. Accordingly, by its true construction, the intention of the Legislature was that " in the absence of any special privilege the Crown has a preference over unprivileged chirographic credi- tors for sums due to it by the defendant being a person accountable for its money." IT). Highways, what are.] — By Canadian as by Scotch law when a street or road becomes a public highway, the soil of the road is vested in the Crown or other public trustee in trust for public use. De la Chevrotiire v. Montreal, 12 App. Cas. 149 ; 56 L. J., P. C. 1 ; 56 L. T. 3— P. C. Where a road or place in Montreal has been registered as a public place of the city under 23 Vict. c. 72, s. 10, sub-s. 6, and had been enjoyed by the public as a public way more than ten years before registration, and more than ten years after registration, and before suit : — Held, that independently of the public right by common law (which had been established in the case) such place had become a public highway, and a private right to resume possession thereof could not be entertained. IT). Legislature, Powers of.] — The Canadian Act, 87 Vict. c. 103, which created a corporation vrith power to carry on certain definite kinds of business within the dominion, is within the legis- lative competence of the Dominion Parliament. The fact that the corporation chooses to confine the exercise of its powers to one province and to local and provincial objects does not affect its status as a corporation, or operate to render its original incorporation illegal, as ultra vires of the said parliament. Colonial Building and Invest- ment Association v. Attorney- General of Quebec, 9 App. Cas. 157 ; 53 L. J., P. C. 27 ; 49 L. T. 789— P. C. Held, further, that the corporation could not be prohibited generally from acting as such within the province ; nor could it be restrained from doing specified acts in violation of the pro- vincial law upon a petition not directed and adapted to that purpose. lb. The Quebec Act, 45 Vict. c. 22, which imposes certain direct taxes on certain commercial corporations carrying on business in the pro- vince, is intra vires of the provincial legislature. Banh of Toronto v. Lambe, 12 App. Cas. 575 ; 56 L. J., P. C. 87 ; 57 L. T. 377— P. C. A tax imposed upon banks which carry on business vrithin the province, varying in amount with the paid-up capital and with the number of its offices, whether or not their principal place of business is -v^ithiu the province, is direct taxation within clause 2 of s. 92 of the British North America Act, 1867, the meaning of which is not restricted in this respect by either clause 2, 3, or 15, of s. 91. Similarly, with regard to insurance companies taxed in a sum specified by the Act. lb. Subjects which in one aspect and for one pur- pose fall within s. 92 of the British North America Act, 1867, may, in another aspect and for another pui'pose, fall within s. 91: — Held, 325 COLONY — Particular Colonies. 326 that the Liquor Licence Act of 1877, o. 181, Revised Statutes of Ontario, which, in respect of ss. 4 and 5, makes regulations in the nature of police or municipal regulations of a merely local character for the good government of taverns, &c., does not, in respect of those sections, interfere with " the general regulation of trade or commerce," but comes within Nos. 8, 15 and 16 of s, 92 of the Act- of 1867, and is within the powers of the provincial legislature. Rutsell v. Meg. (7 App. Gas. 829) explained and approved. Sodge v. Reg., 9 App. Gas. 117 ; 53 L. J., P. C. 1 ; 50 L. T. 301— P. C. Held, further, that the local legislature had power by the said Act of 1867 to entrust to a board of commissioners authority to enact regu- lations of the above character, and thereby to create offences and annex penalties thereto. lb. " Imprisonment," in No. 15 of s. 92 of the Act of 1867, means imprisonment with or without hard labour. lb. The Quebec Act (43 & 44 Vict. c. 9), which imposes a duty of ten cents upon every exhibit ifiled in court in any action depending therein, is ultra vires of the provincial legislature. Attorney-General for Quebec v. Read, 10 App. Cas. 141 ; 54 L. J., P. C. 12 ; 52 L. T. 393 ; 33 W. E. 618— P. G. See also Reg. v. Riel, ante, col. 323. SortgagoT and mortgagee — Notice —Bight of Intervention. ] — Where a registered deed.ref erred to and by reference incorporated certain other transfers and agreements whereby it appeared that the deed, though professedly one of sale, was in substance and reality the transfer to the ostensible purchaser of an estate which had been specifically allotted to him as part of his share of the residue under his father's will: — Held, that a mortgagee from the said purchaser must be treated as having full knowledge that the property was by the will grev6 de substitutions in favour of the mortgagor's wife and family, his usufruct being not arrestable for his debts, especially as the mortgagee's agent was per- sonally cognizant of the tansf ers and agreements of winch the deed gave notice. Certain rents and dividends of the said mortgagor having been attached : — ^Held, that under s. 154 of the Civil Procedure Code, those who were only entitled under the will to the corpus of the property and the shares, had no right to intervene in a proceeding between the mortgagor and mort- gagee to declare such rents and dividends in- saisissables during the mortgagor's life. Carter V. MoUon, 10 App. Gas. 664— P. G. Partnership — Act of one Partner — Liability of Finn.] — The Givil Code of Canada by s. 1855, provides that a stipulation that an obliga- tion is contracted for the partnership binds only the partner contracting when he acts without the authority of his co-partners, unless the partnerehip is benefited by his act. One of three partners lent money on terms that the borrower, besides paying interest, should make over one-half his profits to the firm to which the lender belonged : — Held, that this agreement did not constitute a partnership between the firm and the borrower. One partner has no authority from the other partners to enter into a partnership with other persons in another busi- ness. Singleton v. Knight, 13 App. Cas. 788 ; 57 L. J., P. C. 106 ; 59 L. T. 738— P. C. _ Promissory Notes — Indorsement as Co-sure- ties.] — When the directors of a company mutu- ally agreed with each other to become sureties to the bank for the same debts of the company, and in pursuance of that agreement successively In- dorsed three promissory notes of the company : — Held, that they were entitled and liable to con- tribution inter se, and were not liable to in- demnify each other successively according to the priority of their indorsements. Reynolds v. Wheeler (10 C. B., N. S. 561) approved ; SteeU V. McMnlay (5 App. Cas. 754) distinguished. According to the Civil Code of Lower Canada (Arts. 2340 and 2346) the law of England in force on the 30th May, 1849, is applicable to this question. Macdonald v. Whitfield, 8 App. Cas. 733 ; 52 L. J., P. C. 70 ; 49 L. T. 446 ; 32 W. E. 730— P. C. Bailways — Effect of Order of Railway Com- mittee.] — An order of the railway committee under s. 4 of the Dominion Act, 46 Vict. c. 24, does not of itself, and apart from the provisions of law thereby made applicable to the case of land required for the proper carrying out of the requirements of the railway committee, authorize or empower the railway company on whom the order is made to take any person's land or to interfere with any person's right. Such provisions of law include all the provisions contained in the Consolidated Bail way Act, 1879, under the headings of " Plans and surveys " and " Lands and their valuation," which are applic- able to the case ; the taking of land and the interference with rights over land being placed on the same footing in that Act. Parkdale Corporation v. West, 12 App. Cas. 602 ; 56 L. J., P. C. 66 ; 57 L. T. 602— P. C. Where a railway company, acting under an Older of the railway committee, did not deposit a plan or book of reference relating to the altera- tions required by such order : — ^Held, that it was not entitled to commence operations, and further, that under the Act of 1879 the payment of com- pensation by the railway company is a condition precedent to its right of interfering with the possession of land or the rights of individuals. Jones V. Stanstead Rail. Co. (4 L. E., P. 0. 98J distinguished. lb, — Incorporation — Validity of Unnicipal Bye-law.]— Under Ontario Act, 34 Vict. c. 48, the Grand Junction Eailway Company is recog- nised as an incorporated company; otherwise that it was actually incorporated by Act 37 Vict. c. 43 ; the effect of the two acts being to give to the company so incorporated the benefit of a bye-law of the respondent corporation, which, under certain conditions, provided a bonus for the railway. Under the Act of 1871 the said bye-law is legal, valid, and binding on the cor- poration, but the railway company had not on the evidence complied with the conditions pre- cedent. The stipulated certificate of the chief engineer had not been produced, and although under par. 8 of the bye-Uw debentures might be delivered to trustees without a certificate, that applied to a time when the debentures or their proceeds were to be held in suspense, not to a time when the trusts were spent and the pay- ment, if made at all, should be made direct to the company. Ora/iuL Jimotion- Railway of Canada v. Peterborough (jOorporation), 13 App, Cas. 136— P. C. M 2 327 COLONY — Particular Colonies. 328 Liability of Bailway to Seizure and Sale.]— Section 11 of Quebec Act, 43 & 44 Vict. c. 49, which provides that nothiBg in the act shall affect suits then pending, applies also to proceedings in execution, and therefore the pro- perty of a railway company governed by that act is not precluded thereby from being attached in execution of the respondents' judgment against the company. The railway undertaking in suit, which had become a Dominion railway before the respondents' writ of fi. fa. issued, and was governed by Dominion Act, 46 Vict. c. 24, could be seized and sold, subject to its mortgages, for the debts of the company to which it belonged. Redfield v. Wicltham (^Corpora- tioTi), 13 App. Gas. 467 ; 57 L. J., P. C. 94 ; 58 L. T. 455— P. 0. Sivers — Eiparian Proprietors — Servitudes.] — By s. 501 of the Civil Code of Quebec the pro- prietor of the higher land can do nothing to aggravate the servitude of the lower land. Where the plaintiffs, being entitled to a flow of water from their land, executed certain works which had the effect of accumulating the volume of water, and probably of increasing the depth of its channel :— Held, that to the extent of such accumulation and consequent increase of flow, they had aggravated the servitude of the lower land, and to that extent had no right to demand a free course for the water sent down by them. Having insisted on their right to the existing flow, and refused to allege and prove a case for relief pro tanto, their suit was dis- missed with costs. Frechette v. La Compagnie Manufaeturiere de St. SyacintJie, 9 App. Cas. 170 r 53 L. J., P. C. 20 ; 50 L. T. 62— P. C. Right to Float Timber— Using Improve- ments without Compensation.] — The right con- ferred to float timber and logs down streams by Canadian statute, 12 Vict. c. 87, s. 5, is not limited to such streams as in their natural state, without improvements, during freshets, permit said logs, timber, &c., to be floated down them, but_ extends to the user without compensation of all improvements upon such streams, even when such streams have been rendered flotable thereby. Such right is only conferred by the statute during freshets ; qusere, as to the rights at other seasons of the year of the parties, that is, of the lumberers, on the one side, and the owners of the improvements and the bed of the stream whereon they have been effected, on the other. Caldwell V. McLaren, 9 App. Cas. 392 ; 53 L. J., P. C. 33 : 51 L. T. 370— P. C. Shares— Transfer— liability of Transferee.] — A holder of shares "in trust" is not a mandataire prite-nom, and holds subject to a prior title on the part of some person undis- closed. Such holding not being forbidden by the law of the colony, a transferee from such holder is bound to inquire whether the transfer is authorised by the nature of the trust. Banl of Montreal v. Sweeny, 12 App. Cas. 617 ; 56 L. J., P. C. 79 ; 56 L. T. 897— P. C. Sheriff's Sale— Duty of Vendor to give Pos- session—Sights of Purchaser.]— A sheriff's sale of a sugar factory with the fixed machinery therein, as of an immeuble, having taken place on the distinct footing that the property was sold free of all charges, the customs authorities on the next day, acting under a bref d'assistance, seized the whole machinery and refused to give or allow delivery until the whole export duties chargeable in respect of the machinery were paid : — Held, that whether the claim of the Crown was well founded or not, the seizing and detaining the machinery was in virtue of a warrant ex facie regular, and effectually pre- vented the seller from giving possession, and consequently relieved the purchaser from his obligation to pay the price. There is nothing either in the Civil or Procedure Code of Lower Canada which casts upon such a purchaser the obligation to pay the price and thereafter get possession from a third party as he may. S. 712 of the Procedure Code of Lower Canada relates to dispossessing the judgment debtor onlyj Prevost V. Compagnie de Fives -lAlle, 10 App. Cas. 643 ; 54 L. J., P. C. 30 ; 54 L. T. 97— P. C. Timber Limits— Warranty on Sale — Priority, of Licences.] — On a sale of " timber limits," held under licences in pursuance of the Consolidated Statutes of Canada, c. 23, a clause of simple war- ranty (garantie de tons troubles g6n6ralement quelconques) does not operate to protect the pur- chaser against eviction by a person claiming to be entitled under a prior licence to a portion of the limits sold. Ducondu v. Dwpmj, 9 App. Cas. 150 ; 53 L. J., P. C. 12 ; 50 L. T. 129— P. C. Trustees- Sight of Suit,]— Article 19 of the Civil Code of Procedure is applicable to mere agents or mandatories. It is not applicable to trustees in whom the subject of the trust has been vested in property and in possession for the benefit of third parties, andwho have duties to perform in the protection or realisation of the trust estate. Where trustees sold property over which they had possession and title : — Held, that they were entitled to sue the purchaser to whom they had delivered possession, upon his covenant to pay the balance of the purchase-money. Porteous v. Reynar, 13 App. Cas. 120 ; 57 L. J., P. C. 28 ; 57 L. T. 891— P. C. Will — Construction — Testamentary Appoint- ment.] — Where a testator domiciled in Lower Canada bequeathed a portion of his residuary estate to his executors upon trust to " pay upon the death of his son, the capital thereof to such son's children in such proportion as my said son shall decide by his last will and testament, but in default of such decision then share and share alike as their absolute property for ever" : — Held, that the son had not only the right to apportion the capital between all his children, as well those of his then existing marriage as those of any future marriage, but also the right to dispose of the property in favour of one or more of his children to the exclusion of the others. The English doctrine as to illusory and unsubstantial appointments under a power is not and never was any part of the old French law or of the law of Lower Canada. An English will by a testator domiciled in Lower Canada must be interpreted with regard to the law of ■Lower Canada, and not that of England. Mar- tin V. Lee (14 Moore, P. C. 142) explained. 3fc Gibbon v. Abbott, 10 App. Cas. 653 ; 54 L.J.,' P. C. 39 ; 54 L. T. 138— P. C. 329 COLONY — Particular Colonies. 330 3. Cape op Good Hope. Administratian of Estates — Liability of Asso- ciation.] — ^An association for the administiation of estates carrying on business under the Cape of Good Hope Act, No. 17, 1875, failed to realize certain shares of a testator within, six mouths, although requested to do so by beneficiaries. The association having power by bye-law to take over property and to guarantee it, took over certain securities of a testator as absolute owners ■smi charged commission, by way of guarantee, on the value of such securities : — Held, first, that the association was liable to make good any loss arising from failure to realize the shares ; secondly, that the association could not treat the securities as its own ; thirdly, that as DO actual guarantee was given no commission could be charged. Siddingli v. Be Villiers, 12 App. Cas. 624 ; 56 L. J., P. 0. 107 ; 57 L. T. 885 —P.O. Bank Notes in Circulation or Outstanding.] — Where a bank consisted of a head ofiice and several branches, some of which as well as the head office issued notes : — Held, that by the true construction of Act 6 of 1864 a return of notes in circulation or outstanding need not include bank notes, whether issued by the head or branch offices, which at the date of such return are in possession of any office of the bank. Section 9 merely directs the mode of making the returns. It does not enlarge the basis of returns, nor treat every office of issue as, for the purposes of the act, a separate and independent bank. Sank of Africa v. Colonial Govermnent, 13 App. Cas. 215 ; 57 L. J., P. C. 66 ; 58 L. T. 427 —P. C. Compromise — Heir subject to a Fidei-Com- missnm.] — Where testator's daughtei', on attain- ing the age of twenty-five, took the residue of his estate burdened with a conditional fidei-com- missum, there being no bequest to the executors, who were only appointed administrators, the will not debarring the daughter from the inheritance as heir by birth, and at twenty -five as heir burdened with a fidei-commissum, and the daughter entered into an agreement of com- promise with the executors of all her claims arising out of their administration of the testa- tor's estate, which compromise did not involve any alienation of property : — Held, in a suit by her infant children for substantially the same relief as had been the subject of the said com- promise, that they were bound thereby. The daughter, under the law of the Cape of Good Hope, fully represented the estate, and her children had the same interest as herself. Be Montfort v. Broerg, 13-App. Cas. 149 ; 57 L. J., P. C. 47 ; 58 L. T. 198— P. C. Divorce — Disability — ^Remarriage in England.] — ^A. and B. were married in Ireland, the domicil of origin of each of them being Irish. A. afterwards abandoned his Irish domicil, and for several years lived with his wife at various places in the Cape Colony and Natal, where he engaged in various business enterprises, occasionally making short visits to England. He subse- quently went to Australia with the intention . of settling there, but soon after his arrival there he entered into an agreement with S. to carry, on the business of ostrich-farming in the Cape Colony in partnership for life. A., B., and S. then went together to Natal, where B. left her husband and went with S. to Cape Colony, where they lived together as man and wife. A. afterwards obtained in the court of the Eastern District of the Cape of Good Hope a decree dissolving his mamage on the ground of his wife's adultery with S. ; S. and B. were married in the Cape Colony, and they shortly afterwards returned to England, where they intended to remain, and they were again married at a registrar's office in London. A. was believed to be still in South Africa, but there was no evidence as to whether he was still un- mairied. By the Koman-Dutch law, which pre- vails in the Cape Colony and Natal, parties who have been guilty of adultery are incapable of contracting a valid marriage unless the injm'ed party has married again, but a decree of divorce is an absolute dissolution of the marriage, and the Colonial Courts have no power to dissolve a marriage between parties who are not domiciled within their jurisdiction : — Held, that B.'s disa- bility to contract a valid marriage so long as A. remained unmarried, ceased when she left the Cape Colony, and that therefore her marriage with S. in England was valid. Scott v. Attorney- General, 11 P. D. 128 ; 55 L. J., P. 57 ; 56 L. T. 924 ; 50 J. P. 824— Hannen, P. Encroachment — Bemedy — Jurisdiction.] — In an action brought by the appellant corporation under ss. 60 and 64 of the Municipal Corpora- tions Act, 1872, to compel the respondent company to remove portions of certain buildings which by virtue of a survey authorised by a private act relating to the corporation and dated the 3rd of August, 1866, must be deemed an encroachment on the street : — Held, that the right of resort to the ordinary Courts of Justice was according to the manifest intention of the law of 1866, excluded in reference to all ques- tions resulting from such survey being made binding and conclusive. All such questions must by the terms of the private act be referred to a Court of Arbitration established thereby. The act, however, did not apply to future encroachments, nor to encroachments already existing independently of such survey, on the face lines of streets as laid down by the corporation undfer an earlier Act of 1862. Pietermarit'tburg (May 01-) V. Natal Land Company, 13 App. Cas. 478 ; 57 L. J., P. C. 82 ; 58 L. T. 895— P. C. Executor, Purchase by.] — The law of Natal as to purchases by persons in a fiduciary position does not differ from the law of England. Bening- fielA V. Baxter, 12 App. Cas. 167 ; 56 L. J., P. C. 13 ; 56 L. T. 127— P. C. Prescription — Bights of Owner of Springs.] — The respondent's predecessor in title, in 1820 constructed a watercourse on Crown lands, by means of which he diverted the water of two springs which rose thereon, so that they mingled with the waters of a private stream admittedly belonging to the farm, of which the respondent owned a portion. He did so with the licence of those who acted as agents for the Government, in order to have the permanent use of the water for his farm, and continued his user for the period of prescription, after Which the respondent applied for and obtained from the Colonial Government a renewal of the 331 COLONY — Particular Colonies. 332 licence originally granted to his predecessor : — Held, that the user of the diverted water by the respondent's predecessor was not precarious, and that the act of the respondent had not deprived him of the prescriptive right acquired by his predecessor so as to enable the Crown to give to the plaintiffs in 1881 a title to the said water. It is very doubtful whether, by Dutoh-Eoman law, the owner of the sources of streams has exclusive dominion over their waters. They are at least subject to rights of user acquired by prescription, and probably also to the rights which English law recognises in riparian pro- prietors to water iiowing in a known or definite channel. Miner v. Oilmottr (12 Moore's Ind. App. Cas. 331) ; and Van Breda v. SWberhauer (3 L. E., P. C. 84) approved. French' HoeU Commissioners v. Sngo. 10 App. Cas. 336 ; 54 L. J., P. C. 17 ; 54 L. T.' 92 ; 34 W. E. 18— P. C. Sale of Shares — Unreasonable Delay in Deli- very.] — "Where a contract for the sale of shares did not fix the time for the delivery of them : — Held, that the time for delivery could not depend upon circumstances which were unknown to the buyer, and that delay in tendering the shares arising from the seller having sent his certificate to England for sub-division, as this circumstance was unknown to the buyer, was unreasonable and justified the buyer in refusing to accept the shares. Such delay was mora, assuming the law of mora to be applicable. De Waal V. Adler, 12 App. Cas. 141 : 56 L. J., P. C. 25— P. C. Surety— Bond by a Woman.]— By the law which prevails in Natal a woman cannot be effectually bound as a surety, unless she specially renounces the privileges secured to her by the Senatfls Consultum Villeianum and other rules of law. Where a husband under a general power of attorney from his wife professed to bind her personally as surety under a mortgage bond duly executed : — Held, that, there being no authority to renounce as aforesaid, express or impUed, given by the power of attorney, such deed was void. Maokellar v. Bond, 9 App. Cas. 715 ; 58 L. J., P. C. 97 ; 51 L. T. 479— P. C. Will— Codicil —Devise — Construction.] — A testator and testatrix who had been married in community of property devised by codicil cer- tain real estate to their two sons, with provisoes, first, in restraint of alienation ; second, f'the eldest son among our grandchildren shall always have the same right thereto, and after the de- cease of their parents remain in possession thereof, with this understanding, however, that the other heirs who may still be born shall enjoy equal share and right thereto ... to be for the convenience and benefit of our two children and grandchildren, so that always the eldest son of the grandchildren has the privilege .... and the grandchildren can in our opinion earn their living thereon." No other son was born, the younger entered into possession of half the pro- perty and died, leaving ten children : — Held, that the respondent, who was the eldest of these ten children, was entitled to the whole of his father's moiety. Qusere, as to the true construc- tion of the codicil it there were any attempt to create a perpetuity or entail. De Jarjer v. Be Jager, 11 App. Cas. 411 ; 55 L. J., P. C. 22 ; 54 L. T. 806— P. C. Testamentary Power — Husband and Wife.] — The clearly expressed intention of Natal Ordi- nance No. 1 of 1866 was to give to any subject of the Queen resident in Natal the power of dis- posing by will, according to English law of pro- perty both real and personal, which otherwise would devolve according to Natal law. Sect. 1 was operative for that purpose, except that it concluded with the provision " as if such sub- ject resided in England," the effect of which is to leave both the lex situs and the lex domicilii in operation, thus reducing the section to a nul- lity : — Held, that these words ought not to be so construed as to destroy all that has gone before, and therefore should be treated as immaterial, the powers conferred not being affected by the question of residence in England. Salmon v. Buncombe, 11 App. Cas. 627 ; 55 L. J., P. C. 69 ; 55 L. T. 446— P. C. 4. Ceylon. Sight to sue Crown— Set-off.] — There is no authority for saying that the Eoman- Dutch law of Holland, which was in force in Ceylon at the date of its conquest by the British, and has not since been abrogated, empowered the subject to sue the government. But since the conquest a very extensive practice of suing the Crown has sprung up and has been recognized by the legis- lature. See the 117th section of Ordinance No. 11 of 1868, which re-enacted an Ordinance of 1856 : — Held, therefore, that such suits are now incorporated into the law of the land. Held, further, that where the Crown is plaintiff and the defendants sue in reconvention, the court is not bound to give separate judgments, but may set off the amount awarded to the defendants against that awarded to the Crown, and give judgment for the balance. Settiliewage v. Queen's Advocate, 9 App. Cas. 571; 53 L. J., P. C. 72 ; 51 L. T. 401— P. C. 5. China Settlements. Land 'and municipal Segulations — Bights of Eenters.] — ^According to the true construction of Art. 5 of the Eegulations of 1854 (1) the pub- lic uses to which beach grounds of the rivers are thereby dedicated are the uses to which such grounds in the district are ordinarily held sub- ject ; (2) such dedication does not deprive the renter of his property in the grounds, but obliges him to respect the uses ; (3) every renter takes with the condition, express or implied, that his holding is subject to such uses ; (4) jurisdiction is conferred to prevent anything (e.g., building thereon) being done inconsistent with or de- structive to the rights of the public having uses on the beach ground. Ince v. Tliorlmrn, 11 App. Cas. 180 ; 55 L. J., P. C. 19 ; 64 L. T. 849 —P. C. 6. Jeesey. Foreign Judgment — Debtors' Trustees joined as Co-defendants — Interest.] — ^A judgment credi- tor, suing in Jersey to enforce a judgment of an English court, joined as co-defendants the attor- ney of his judgment debtor, and the attorney of the trustees of the debtor's property : — Held, that the Jersey court was wrong in decreeing payment personally against the trustees. The 333 COLONY — Particular Colonies. 334 foreign judgment being no more than evidence of a debt, it was incompetent for the plaintifE to sue other persons jointly with the debtor, on the allegation that they held as trustees pro- perty of which the debtor was beneficial owner. Hawhsford v. Giffard, 12 App. Cas. 122 ; 56 L. J., P. C. 10 ; 56 L. T. 32— P. C. As regards interest on the English judgment it should not be altered by the Jersey court except from the date of the Jersey judgment ; the costs, moreover, occasioned by joining the trustees should not be given. li, i Bight of Way — Creation of Title — Dedication followed hy User.] — By the law of Jersey a public right of way in the nature of an easement over the soil of another cannot be created by a mere dedication by the owner of the fee simple at any time followed by user of the way so dedi- cated : — Quaere, whether au easement or servitude can be created by any enjoyment, even from time immemorial, without proof of title ; and whether forty years' possession by a parish of a way as a public way accompanied by acts of ownership would prove title in the parish to either the soil or the servitude. Be Carteret v. Baudains, 11 App. Gas. 214 ; 55 L. J., P. C. 33 —P. C. Set-off.] — ^According to the law of Jersey a claim by way of compensation or set-ofE is admissible, when it is for a liquid demand. Such claims having been dismissed by the court below the case was remanded to ascertain whether they were in whole or in part liquid debts or debts '•inoontest^es ou du moins incontestables " as alleged by the appellants. Byson v. Godfray, 9 App. Cas. 726 ; 53 L. J., P. C. 94 ; 51 L. T. 580— P. C. 7. Malta. Legitimation — Children ez nefario coitn — Jnrisdiction.] — By Justinian's Kovel 89 legiti- mation per rescriptum principis was introduced. Children ex nefario coitn though thereby de- clared incapable, were occasionally legitimated by an exercise of imperial grace. By the later civil law children of parents free to marry at the time of their conception and birth could be legitimated as a matter of right ; children ex nefario coitu only at the discretion of the ruling power, and subject to its conditions. In Malta since it became a British possession the power of legitimation was exercised by the governor until by an Ordinance of the 25th May, 1814, it passed to the Third Hall of the Civil Court : — Held, that the law of Malta as to legitimation is to be found in the Code Bohan and Maltese precedents ; and only where its provisions fail, in the civil law : — Held, further, that by the Code and precedents the respondent natus ex uxorato et soluta, and therefore ex nefario coitu, had been idaly legitimated by a decree of the Third Hall, and thereby acquired the character and rights of a child legitimus et naturalis so far as permitted by municipal law ; entitling him to take under limitations in favour of legitimate and natural children unless a plain intention was expressed to the contrary. Gera v. Ciantar, 12 App. Cas. 557 ; 56 L. J., P. C. 93 ; 57 L. T. 818— P. C. Under the Ordinance of 1814 the court has ■jurisdiction in the case of every petition for legitimation which, according to previous prac- tice, would have been referred by the governor to a judge for inquiry and report. Its exercise should be governed by considerations derived from the state of the parent's family, and the interests of the child ; other persons whose in- terests may be affected need not be cited, and the court has no power to attach conditions for their protection. JJ, Primogenitura — Descent in exclusively Male Line derived from a Female.] — Where the founders of a Maltese primogenitura limited the succession by a deed of settlement in 1695 to the eldest and other sons of F., the original donee, and their respective male lines ; then on failure of all those lines to his female issue and their respective descendants after them in a prescribed order, derived from repeated indica- tions in the deed that the line of descent was to be exclusively male though traced from a female head of line ; and, lastly, ou failure of all his male and female issue, to the younger brothers of the original donee and their respective issue ; and it appeared that the original donee had daughters only :— Held, that according to the true construction of such pre- scribed order of succession, notwithstanding the general presumption of Maltese law in favour of the " regular " course of succession, which admits females descended from the last holder in preference to all collaterals, the succession from females was effectively declared to be in lines of " artificial agnation," that is the male line of descendants from a female ancestress through males were intended to take exclusively of females till that male line was exhausted ; and consequently that the respondent, the half- brother of the last holder, succeeded in pre- ference to the daughter. B'Amioo v. Trigona, 13 App. Cas. 806 ; 58 L. J., P. C. 20— P. C. Descent of Barony established as Hereditary Feud.] — F. also held a barony (established under the Frank Princes in Naples and Sicily as a hereditary feud, alienable with the Royal assent), under a settlement of 1674, which limited the same to his descendants gene- rally. By his will he purported to annex the same to his said primogenitura, thereby purporting to impress upon it the character of a majorat descendible to males to the exclusion of females : — Held, that assuming that a former settlement of the barony in 1613 did not establish the succession unalterably in favour of the " regular " lineal descent, F. could so annex it to the extent permitted by the Pragmatic of Philip IV., No. 34. Case remitted to the court below to investigate whether the succession to the barony was still prescribed by the settlement of 1613, notwith- standing the settlement of 1674, and, if not, within what limits the will of F. was operative in regard thereto according to the natural con- struction of the Pragmatic ; unless there be any settled usage or interpretation thereof at variance with its natural construction and so entitled to prevail. lb. Trade Mark— Bight to exclusive User.] — In Malta there is no law or statute establishing the registration of trade-marks,, and no authority exists from which an exclusive right to a par- ticular trade-mark can be obtained. But by the 835 COLONY— PariicuW Colonies. 336 general principles of the commercial law, as soon as a trade-mark has been so employed in the market as to indicate to purchasers that the goods to which it is attached are the manufacture of a particular firm, it becomes to that extent the property of the firm. Somenille v. Scliembri, 12 App. Cas. 453 ; 56 L. J., P. C. 61 ; 56 L. T. 454— P. C. Where cigarettes made by the appellant's firm became favourably known under the trade-mark " Kaisar-i-Hind " : — Held, that the use of that trade-mark by others for hats, soap, pickles, &c., could not impede the acquisition of an exclusive right to it as a trade-mark for cigarettes ; that the respondents should be restrained from using for cigarettes a copy of the said mark with colourable variations, such copy being likely, even if not intended, to deceive purchasers into the belief that such cigarettes were manufactured by the appellant's firm. lb. 8. Mauritius. Validityof Adjudication of Bankruptcy.] — The Court of Bankruptcy of the Mauritius has juris- diction to order adjudication against a firm on the petition of the sole member of that firm. Such order is valid against the petitioner per- sonally. Under ss. 40, 43, and 50 of Ordinance No. 83 of 1853, a, creditor cannot challenge the validity of such order on the ground that the bankrupt has not made it appear to the satisfac- tion of the court that his estate is sufficient to pay his creditors at least five shillings in the pound clear of all bankruptcy charges. Such qualified solvency is not a fact to be put in issue and proved, but provisionally to appear to the satisfaction of the court, the propriety of whose conclusion cannot by any process be contested. Oriental Bank Corporation v. Richer, 9 App. Cas. 413 ; 53 L. J., P. C. 62 ; 51 L. T. 273— P. C. 9. Newfoundland. Contract — Apportionment — Counterclaim for TTnliquidated Damages — Set-off against As- signees.] — By contract in 1881 embodied in a statute the plaintifE company covenanted to complete a railway in five years, and thereafter to maintain and continuously operate the same. In consideration thereof the government cove- nanted : (a) to pay the company upon the con- struction and continuous operation of the line an annual subsidy for thirty-five years, such subsidy " to attach in proportionate parts and form part of the assets of the company as and when each five-mile section is completed and operated ; " (V) to grant to the company in fee simple 5,000 acres of land for each' one mile of railway com- pleted, on completion of each section of five miles. It appeared that the company completed a portion of the line, and received from the government on the completion of each five-mile section the specified grant of land, and certain half-yearly payments in respect of the propor- tionate part of the subsidy which was deemed by the parties to attach thereto ; thereafter the contract was broken by the company, and the government refused further payments. In a suit by the company and its assignees of a division of the railway and of the rights relating thereto : — Held (1), that on the true construction of the contract (a) each claim to a grant of land was complete from the time when the. section which had earned it was complete ; (V) on the completion of each section a proportionate part of the subsidy became payable for the specified term, but subject to the condition of continuous efficient operation ; (2), that by the law of the colony the government were entitled to set off a counterclaim for unliquidated damages for the company's breach of contract in not completing the line ; (3), that the set-off availed against the assignees of the company, the claim and counter- claim having their origin in the same portion of the same contract, the obligations which gave rise to them being closely intertwined. Toung V. Kitchin (3 Ex. D. 127), approved. Newfound- land Government v. Newfoundland, Railway, 13 App. Cas. 199 ; 57 L. J., P. C. 35 ; 58 L. T. 285 -P.O. 10. New Zealand. Compensation — " Estate or Interest in Land,"] — Land having become vested in the respon- dents under the Wellington Harbour Board and Corporation Land Act, 1880, the appellants claimed compensation under the Public Works Act, 1882, on the ground of their having some estate or interest therein within the meaning of the latter act. It appeared that the appellants' lessor (or his predecessor in title) had in 1848 erected a wharf on the said land, with the per- mission of the government, and in 1855 a jetty ; that in 1856, at the request and for the benefit of the government, he incurred large expendi- ture for the extension of his jetty and for the erection of a warehouse ; that in subsequent years the government used, paid for, and with the consent of the said lessor, improved the said land and works : — Held, that the lessor must be deemed to have occupied the ground from 1848 under a revocable liceijce to use it for the pur- poses of a wharfinger ; that by virtue of the transactions of 1856 such licence ceased to be revocable at the will of the government whereby the lessor acquired an indefinite, that is, prac- tically, a perpetual, right to the jetty for the purposes aforesaid. The equitable right so ac- quired is an " estate or interest in, to, or out of land " within the wide meaning of the Act of 1882, which directs that in ascertaining title to compensation the court should not be bound to regard strict legal rights only, but should do what is reasonable and just. Plimmer'v. Wellington (Mayor), 9 App. Cas. 699 ; 53 L. J., P. C. 104 ; 51 L. T. 475 ; 49 J. P. 116— P. C. Executive Government — liability for negli- gence— Reasonable Care.]— Where the executive government possessed the control and manage- ment of a tidalharbour, vpith authority to remove obstructions in it, and the public had a right to navigate therein, subject to the harbour regu- lations and without payment of harbour dues ; the staiths and wharves belonging to the execu- tive government which received wharfage and tonnage dues in respect of vessels using them : — Held, that there was a duty imposed by law upon the executive government to take reasonable care that vessels using the staiths in the ordinary manner may do so without damage to the vessel. Reasonable care is not shown when, after notice of' danger at a particular spot, no inquiry is made as to its existence and extent, and no 837 COTiO^Y— Appeals to the Privy Council. 338 warning is given. Heff. v. Williams, 9 App. Cae. 418 ; 53 L. J., P. C. 64 ; 51 L. T. 546— P. C. The principle of liability for negligence estab- lished by Partiaby v. Lancaster Canal Company (11 Ad. & E. 223), and Mersey Docks Trustees v. Gihls (1 L. R., H. L. 93), approved of, and applied to the executive government in the above circumstances, which were distinguishable in respect of non-receipt of harbour dues, notwith- standing the Crown Suits Act, 1881, s. 37. II. 11. Straits Settlements. Crown Suits— Tort.]— The Crown Suits Ordi- nance, 1876, s. 18, sub-s. ii., provides that " any claim against the Crown for damages or com- pensation arising in the Colony shall be a claim cognisable under the Ordinance " : — Held, that the expression " claim " includes claims arising out of tort. Attorney- Oeneral of Straits Settle- ments V. Wemyss, 13 App. Cas. 192 : 57 L. J., P. C. 62 ; 58 L. T. 358— P. C. Lessor and Lessee — Covenant for Benewal — Derogation from Grant.]— A lessee of land with covenant for renewal obtained a renewal of the lease. The new lease did not contain the whole of the land demised by the former lease. Prior to renewal the lessor had given the Government a licence to execute certain work by which the land demised was injuriously affected : — Held, that the new lease was a fulfilment of the covenant for renewal, though the subject-matter was not identical, and that the right of the lessee to compensation was not affected by the licence given by the lessor. Jb. 12. Teinidad. Bill of Sale of Growing Crops — Begistration.] — ^A bill of sale of crops actually growing at the date of execution is void for want of registration under Trindad Ordinance, No. 15 of 1884. The words in s. 10 " nothing contained in this Ordi- nance" mean ''nothing contained in the two next preceding sections of this Ordinance." Tennant v. Homatson, 13 App. Cas. 489 ; 57 L. J., P. C. 110 ; 58 L. T. 646— P. 0. Status of Children bom before Uarriage — law of Inheritance.] — According to the Spanish laws originally in force in Trinidad, children bom before marriage (contracted before the 12th of March, 1846), have the same rights of inherit- ance from their father and mother as children bom after marriage. Section 13 of Ordinance No. 24 of 1845, while preventing marriage after that date from legitimating the ante-nati chil- dren, does not take away the status 'of legitimacy previously acquired. Where a mother married before that date, died intestate in 1862, leaving seven children, three of whom were ante-nati and four post-nati, held, that each by inheritance took one-seventh of the estate which she had acquired by purchase under s. 5 of No. 24 of 1845 : — Held, with regard to the shares of two ante-nati who had died thereafter intestate without issue, that under s. 5 above cited and s. 7 of No. 7 of 1858, they were divisible equally amongst the four surviving children whether ante-nati or post-nati, and the issue of a deceased ■daughter. Escallier v. EscalUer, 10 App. Cas. 312 ; 54 L. J., P. C. 1 ; 53 L. T. 884— P. ,C. II. APPEALS TO THE PEIVY COUNCIL. Criminal Frooeedings— Order striking off the Soil reversed.] — In an appeal by a barrister and solicitor against a verdict convicting him of per- jury, and against a consequential order of court directing him to be struck off the roll of prac- titioners : — Held, that the conviction having been obtained by directions of the judge, which were improper and grievously unj ust to the appel- lant, could not be allowed to stand, and that the consequential order must be reversed. Dillett, III re, 12 App. Cas. 459 ; 56 L. T. 615 ; 36 W. K. 81 ; 16 Cox, C. C. 241— P. G. Her Majesty will not review criminal proceed- ings unless it be shown that by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done. Falkland Islands Company v. Mey. (1 Moore, P. G. (N. S.) 312) approved. lb. See Mel v. Heg., ante, col. 323. Special leave — When granted.] — Special leave was granted to appeal against the convic- tion limited to show that being the sole founda- tion for the subsequent order, it had been obtained so unfairly as not to be conclusive for that purpose. Dillett, In re, supra. Canadian Election Petition.] — Whether the prerogative of the Crown has or has not been taken away by the general prohibition of appeals under the Canadian Controve,rted Elec- tions Acts, it ought not to be exercised in the case of an appeal from a decision of the Supreme Court of Canada upon an election petition, con- sidering the narrow range of such cases, and the desirability of their being decided speedUy and locally. Leave to appeal refused. Kennedy v. Purcell, 59 L. T. 279— P. C. Improper Concealment of Material Facts.] — Where an order granting special leave to appeal had been made upon a petition which improperly concealed from their lordships the ground upon which the appeal had been refused by the court below : — Held, that a subsequent petitioil that further evidence be taken must be refused, as nothing will be done to assist an appeal so instituted. Baudains v. Jersey Bank- ing Company, 13 App. Cas. 832 — P. C. Special Befereuce of Matters in Dis- pute.] — Where by special agreement sanctioned by the court the petitioner had come in and con- sented to be made a party to the cause in appeal, and to be bound by the order of the Supreme Court to be made therein, but by the terms of the, agreement the powers of the Supreme Court were defined and restricted, and its order to be " considered a final disposition of all contentions, whether now in litigation or not " : — Held, that the Supreme Court in deciding the case was acting under the terms of a special reference, and not in its ordinary jurisdiction as a court of appeal, and special leave to appeal refused. J^ova Scotia (Attorney • GeneraV) v. Gregory, 11 App. Cas. 229 ; 55 L. J., P. C. 40 ; 56 L. T. 270 —P.O. No General Principle — Unanimous Judgment.] — Where the determination of a case will not be decisive of any general principle of 339 COLONY — Appeals to the Privy Council. 340 law, the judicial committee will not give leave to appeal from a unanimous judgment of the court below, on the ground that the questions involved are either of great importance to the parties, or calculated to attract public attention. Dumoulin v. Langtry, 57 L. T. 317 — P. C. Appealable Amount.] — The measure of ■value for determining a defendant's right of appeal is the amount which the plaintiff has recovered ; where this falls short of the appeal- able amount the court below cannot give leave to appeal. Where such leave has been erroneously given, the appeal will be dismissed, and an opportunity to apply for special leave will not be granted unless the circumstances are such as to render it desirable. Allan v. Pratt, 13 App. Cas. 780 ; 57 L. J., P. C. 104 ; 59 L. T. 674 —P.O. Consolidation of Appeals.] — Their lordships will consolidate appeals at any stage if it appears convenient that they should be heard altogether. An appeal was struck out and ordered to be con- solidated with two other appeals arising out of the same will, but in a suit which had not been instituted till a year after the first appeal had been admitted. Hiddingh Vi Denyssen, 12 App. Cas. 107 ; 57 L. T. 885— P. C. New Trial — Evidence — Question for Jury.] — Where there is evidence on both sides properly submitted to the jury, the verdict of the jury once found ought to stand : — So held, reversing an order of the court below which had set aside a verdict as against the weight of evidence though it was neither unreasonable nor unfair, nor dissented from by the judge who tried the case. Commissio7ier for MaMways v. Eroion, 13 App. Cas. 133 ; 57 L. J., P. C. 72 ; 57 L. T. 895— P.O. Concurrent Findings of Facts.] — Where there have been concurrent findings of fact by the courts below, the question in appeal is not what conclusion their lordships would have arrived at if the matter had for the first time come before them, but whether it has been established that the judgments of the courts below were clearly wrong. Allen v. Queiec Warehouse Company, 12 App. Cas. 101 ; 56 L. J., P. C. 6 ; 56 L. T. 30 — P. C. Judgments of Judges — Seasons.] — It is most desirable that judges in the colonies should comply with the rule of the 10th of February, 1845, as to giving reasons for their judgments. Colonial Insurance Company of New Zealand V. Adelaide Marine Insurance Company, 12 App. Cas. 128— P. C. Judge's Notes of Evidence.] — Where judge's notes of evidence are mere private memoranda and are not taken in pursuance of any law or practice requiring them : — Held, that it would be improper to have them before a Court of Appeal. Baudains v. Jersey Banking Company, 13 App. Cas. 832— P. 0. Appellant not having pursued Bemedy in Court below.] — Where a defendant objected to a verdict on the ground that it was not war- ranted by the evidence, but neglected to move the court for a new trial in the manner directed by the rules and practice of the court : — ^Held, that her Majesty in Council could not alter the verdict, or set it aside, and could not be advised to direct a new trial, the appellant not having applied in that behalf to the court in the regular course. Bagnino v. Bellotti, 11 App. Cas. 604 ; 55 L. T. 497— P. C. Petition for Eehearing.] — In a petition for rehearing of two appeals which had been fully heard upon their merits, and in which judgment had been given and reported to her Majesty, and confirmed by regular orders in Council : — Held, that assuming that a relevant case of new matter had been made out, the decision was final, and the petition must be refused. There may be exceptional circumstances which will warrant this Board, even after an order of her Majesty in Council has been made, in allowing a rehear- ing at the instance of one of the parties ; but this is an indulgence with a view mainly to doing justice when, by some accident, without blame, the party has not been heard, and an order has been made inadvertently as if the party had been heard. Venltata NarasimJta Bow v. Court of Wards, 11 App. Cas. 660— P. C. Point not raised in Court below.] — On the argument of an appeal to the judicial committee in an action of trespass for interrupting the flow of a stream to the respondent's land, the appellants contended that the action was not maintainable, because it was not brought within three months of the trespass complained of, and because no notice of action had been given as required by a colonial statute : — Held, that, as the points had not been raised in the court below, the appellants could not be allowed to take them on appeal. Adelaide Corporatian v. Wldte, 55 L. T. 3 — P.O. COMMISSION. For Examination of Witnesses.] — See Evi- dence. Of Agents.] — See Peikcipal and Agent. COMMISSIONERS. Charity Commissioners.] — See Chabitt. Ecclesiastical Commissioners.] — See Ecclesi- astical Law. Wreck Commissloneirs.] — See Shipping. COMMITMENT. By Magistrates.] — See Justice of the Peace. Under Bebtors Act] — See Debtoes Act. For Contempt of Court.] — See Contempt op CoukT. 341 COMMONS. 342 COMMONS. Power of Sale — ^Allotments.]— Where by virtue of the Charitable Trusts Act, 1853, s. 24, and the Charitable Trusts Amendment Act, 1855, s. 38, a power of sale existed at the date of the passing of the Allotments Extension Act, 1882, over lands within the scope of the last- mentioned act, that act did not take away the power of sale. Sutton {Parish of) to Clmreli, 26 Ch. D. 173 ; 53 L. J., Ch. 599 ; 50 L. T. 387 ; 32 W. E. 485— Chitty, J. Inclosure — ^Damage by working Uines.] — See Bell V. Love, post. Mines and Minebals. Commonable Lands purchased by Bail- way — ^Kights of Lord, Owners and Occupiers.] — Prior to 1802 the occupiers of certain cottages were accustomed to cut turf on large tracts of commonable and waste lands of a manor. In that year an Inclosure Act was passed by which commissioners were empowered to allot lands in severalty to the lord and other persons interested, and to allot to the lord in trust for the occupiers of the cottages portions of the waste for a turf common, to be managed as the lord and the churchwardens and overseers should order and not to be depastured. The commissioners by their award, made in 1806, allotted to the lord of the manor, in trust for the occupiers for the time being of the cottages, 425 acres of waste for a turf common for the use of the cottagers. The commissioners also allotted to the lord and other persons interested portions of the inclosed lands in severalty in lieu of their rights and interests. A railway company took for the purposes of their undertaking part of the land allotted as a turf common, and the purchase-money was paid into court. On a petition by the freeholders of the cottages for the distribution of the fund : — Held, that the owners of the cottages had no claim on the fund ; that the lord of the manor was entitled to such part of the fund as represented the value of the soil in the land taken by the company ; and that the remainder of the fund was to be held as a charitable trust for the benefit of the occupiers of the cottages. Good- man V. Saltash {Mayor) (7 App. Gas. 633) dis- cussed. ChriMchurch Inclosure Act, In re, 38 Ch. D. 520 ; 57 L. J., Ch. 564 ; 58 L. T. 827.— C.A. Power to stop up Highway— Old In- closures.] — By s. 62 of the Inclosure Act, 1845, power is given to the valuer acting in the matter of any inclosure to set out and make public roads and ways, and widen public roads and ways, in or over the land to be inclosed, and to stop up, divert or alter any of the roads or ways passing through the land to be inclosed, or "through any old inclosures in the parish or respective parishes in which the land to be inclosed shall be situate " :— Held, that the power of stopping up roads so given is not confined to roads pass- ing through old inclosures or intakes from the waste or common, the subject of inclosure, but extends to roads passing through any old in- closures within the parish. Horriby v. Silvester, 20 Q. B. D. 797 ; 57 L. J., Q. B. 558 ; 59 L. T. 666 ; 36 W. K. 679 ; 52 J. P. 468.— C. A. Certificate of Commissioners — ^Validity of Charge — ^Borrowing Powers.]— The Eiver Dee Company was by act of parliament empowered to borrow upon mortgage of the lands of the company any sums not exceeding 25,0002. The company, however, borrowed more. After this the Lands Improvement Company, having by its acts power to advance to landowners money for the improvement of land, advanced to the Eiver Dee Company 6,405Z., and by an order the Inclosure Commissioners purported to charge the lands of the Eiver Dee Company with the repayment of that sum and interest by annual instalments : — Held, that the powers given by the Lands Improvement Company's Acts did not override the restriction on the borrowing powers of the Eiver Dee Company, and that the charge on the lands of the Eiver Dee Company was consequently invalid ; and that a clause in one of the Lands Improvement Company's Acts making the certificate of the Inclosure Com- missioners conclusive evidence of the validity of a charge under the act did not render the charge valid in such a case. Wenloclt (JBaroness) v. m-oer Bee Company (No. 2), 38 Ch. D, 534 ; 57 L. J., Ch. 946 ; 59 L. T. 485— C. A. Grant of Woods to Copyholders — Charitable Purpose — Bepair of Sea Dykes.] — See Wilson, v. Barnes, ante, col. 311. Bye-laws — Letting for Hire on Common.]— M. had premises adjoining a common regulated under the bye-laws made under the Commons Act, 1876, where she let ponies for hire. M. at her premises let ponies to be used by two per- sons on the common, and they used them there : — Held, this was no ofience within the meaning of the words " letting for hire on the common any pony," ^c. Marey v. Morris, 52 J. P. 168— D. COMPANY. I. FOEMATION, CONSTITTJTION AND IN- COEPOBATION. 1. Prospectus. a. General Principles, 344. T>. Misstatements when Material, 346. c. Disclosure of Contracts, 347. d. Proceedings for Misrepresenta- tion, 348. 2. Mcmorandwn and Articles of Asso- ciation, 350. 3. Registration. a. Of Companies, 351. &. List of Members and Summary, 354. c. Inspection of Eegisters, 354. d. Of Mortgages— &e post, IV., 2, b . e. Of Shares— &e post, VI., 7. II. Peomotebs and Dieectoks. 1. Promoters, 355. 2. Directors. a. Appointment, 357. J. Powers and Liabilities generally, 357. I,'. Liability for Misfeasance, 359. IIL Auditors, 364. 843 COMPANY — Formation, Constitution, and Incorporation. 344 IV. B0B110WIN& Powers, Mortgages and Debentures. 1. Borrowing Powers, 364. 2. MoHgages. a. Validity, 366. l. Registration, 366. 3. Deientures and Bebentwe Stoclt. a. Whatare— Bills of Sale Act, 368. 6. Validity and Efiect of, 370. c. Priorities, 371. d. Issue, 372. e. Eights of Holders, 373. V. Capital, 375. 1. PoAjment of Dividends out of— See ante, cols. 360, 361, 362. 2. Reduction of. a. In what Cases, 375. J.- Petition for, 378. VI. Shakes and Stock. 1. Sale on Stoelt MJmcJiange, 380. 2. Application and Allotment, 381. 3. Issue, 882. 4. Provisions in Articles of Association, 384. 5. Transfer, 385. 6. Megistration of Contract under s. 25 of Companies Act, 1867 — See infra, XL, 15, b. 7. Megistration of Shares, 389. 8. Calls, 392. 9. Certificates, 394. 10. Other Points, 397. VII. Dividends, 398. Vin. Contracts, 400. IX. Meetings of Shareholders, 403. X. Actions by and against Companies, 408. XI. Winding up. 1. What Companies, 409. 2. Orders for, 412. 3. Petitions. a. By whom presented, 413. J. Practice, 414. c. Costs, 416. 4. Staying and Restraining Proceed- ings, 417. 5. Liquidators and Receivers, 419. 6. Rent and Rates, 423. 7. Set-off, 425. 8. Assets. a. Sale of, 428. b. Distribution of, 428. 9. Invalid and Protected Transactions, 433. 10. Sehems of Arrangement, 437. 11. Reconstruction, 438. 12. Examination of Witnesses and Books, 438. 13. Practice, 440. 14. Balance Order, 443. 15. Contributories. a. Qualification Shares, 444. T}. Fully paid Shares, 446. c. Subscribersto Memorandum, 450. d. Allottees and Applicants, 451. e. Transferees and Nominees, 453. /. Trustees, 454. g. Company limited by Guarantee, 456, I. FORMATION, CONSTITUTION, AND INCOEPOEATION. 1. PEOSPECTUS. a, O-eneral Principles. raise Sepresentation — Contributory Mistake' of Plaintiff.] — Where a plaintiff has been in- duced both by his own mistake and by a material misstatement by the defendant to do an act by which he receives injury, the defendant may be made liable in an action for deceit. Mdgington V. Fitzmam-ice, 29 Ch. D. 459 ; 53 L. T. 369 ; 33 W. E. 911 ; 55 L. J., Ch. 650 ; 50 J. P. 52— C.A. Not only Inducement. ]-rWhere a mis- statement of fact by the defendant materially tended to induce the plaintiff to do an act by which he has incurred damage, the defendant may be made liable in an action of deceit, although the misstatement was not the only in- ducement to the act. Peeli v. Perry, 37 Ch. D. 541 ; 57 L. J., Ch. 347 ; 59 L. T. 78 ; 36 W. E. 899— C. A. See S. C. in H. L. 33 S. J. 589. Where a person seeks to rescind a contract to take shares on the ground of misrepresentation, it is not necessary that he should prove that if the misrepresentation had not been made he would not have taken the shares. It is sufficient if there is evidence to show that he was ma- terially influenced by the misrepresentation. Carling v. London and Leeds Bank, 56 L. J., Ch. 321 ; 56 L. T. 115 ; 35 W. E. 344— Stir- ling, J. Beferenoe to Vendor's Seport — No Guarantee by Promoter.] — The prospectus of a, mining company, registered under the Companies Acts, contained statements which were based upon a report appended to the prospectus, and made by the vendor to the company, concerning the mining property sold by him to it, which was situate in British Burmah. Upon an engineer being subsequently sent out by the company to work the mine, the vendor's report was found to be absolutely untrue, and the mine was shown to be an entire failure and utterly worthless. Eelying upon this information as to the property afforded by the company's mining engineei', a shareholder applied to have his name removed from the register of members of the company on the ground of misrepresentations in and sup- pression of material facts from its prospectus : — Held, that the promoters of the company had not guaranteed the truth of the vendor's report, nor were they the persons by whom the shareholder had been deceived ; that the shareholder was aware of all the circumstances from the first, and knew as much as the promoter did, and he had no right to be put in a better position than the other shareholders ; and that therefore his application must be refused. Vickers, Mx parte, British Burmah Lead Company, In re, 56 L. T. 815— Kay, J. No reasonable Ground for Statement.] — The act incorporating a tramway company provided that the carriages might be moved by animal power, and, with the consent of the Board of Trade, by steam or other mechanical power. The directors, who expected that they would without difficulty obtain the consent of the Board of 345 COMPANY — Fcyrmation, Constitution, and Incorporation i. 346 Trade, issued a prospectus in which they stated that by their special act the company had a right to use steam power instead of horses. The plaintiff took shares on the faith of this pro- spectus, and stated in his evidence that he was induced to take them by the statement that the company had the right to use steam power, and also by his knowledge of, and interest in, the locality, and his confidence in the character of the directors. The Board of Trade refused their sanction to the use of steam power, and the company was wound up. The plaintiff brought an action against the directors claiming damages for their misstatement in the prospectus : — Held, that the directors were liable for the misstate- ment, as it was made without reasonable ground for their believing it. Peeh v. Berry, supra. Adoption by Director.] — One of the defendants was not present at the meeting which issued the prospectus, but a few days afterwards he re- ceived some copies of it and circulated them : — Held, that he had adopted the prospectus, and was liable to the plaintiff, although the copy seen by the plaintiff had not been supplied to him by the defendant. li, b. Misstatements -vrlieii Material. misstatement of Object or Intention.] — A misstatement of the intention of the defendant in doing a particular act may be a misstatement of fact, and if the plaintiff was misled by it an action of deceit may be founded on it. Hdgington v. Mtzmaurice, 29 Ch. D. 459 ; 55 L. J., Ch. 650 ; 53 L. T. 369 ; 33 W. E. 911 ; 50 J. P. 52— C. A. The directors of a company issued a prospectus inviting subscriptions for debentures, and stating that the objects of the issue of debentures were to complete alterations in the buildings of the company, to purchase horses and vans, and to develop the trade of the company. The real object of the loan was to enable the directors to pay off pressing liabilities. The plaintiff advanced money on some of the debentures under the erroneous belief that the prospectus afforded a charge upon the property of the company, and stated in his evidence that he would not have advanced his money but for such belief, but that he also relied upon the state- ments contained in the prospectus. The com- pany became insolvent : — Held, that the mis- statement of the objects for which the deben- tures were issued was a material misstatement of fact, influencing the conduct of the plaintiff, and rendered the directors liable to an action for deceit, although the plaintiff was also in- fluenced by his own mistake. lb. "Capital already subscribed."] — The pro- spectus of a company contained a statement that the share capital was 300,0002., of which 200,0002. had been already subscribed. At the date of tlfe prospectus only 35Z. had been actually subscribed, but there were two con- tracts between the company and A. under which A. had agreed to take 200,0002. in fully paid-up shares as the consideration for the sale of a concession, and as part payment for the construction of certain works : — Held, that this statement was material and untrue. Arnison v. Smith, 59 L. T. 627— Kekewich, J. Affirmed, 41 Ch. D. 348—0. A. Confident belief in SufBciency of " Profits."] — The defendants were shareholders in the Date- Coffee Company, a company whose objects were declared to be the acquisition of licences to use an invention for manufacturing from dates a substitute for coffee, for which a patent had' been granted to H. (one of the defendants), and to sell, &c., the patent-rights when acquired by the company. Of this company the other defen- dants were the chairman and the solicitor ; H. was the consulting engineer. H. was alsO' possessed of a patent for the manufacture and sale of date-coffee in France ; and a company was formed for that purpose, called the French Date-Coffee Company, with a capital of 100,0002. in 100,000 shares of 12. each, by whom H.'s patent for France was purchased for 50,0002., which sum it was agreed should be divided as a bonus amongst the shareholders in the English company. The defendants prepared and issued a prospectus of the French company, containing the following passage : — " From the success attending the company formed for the working of Henley's English patent, when a duty of id. per lb. is payable, and the coffee sold at 1«, per lb., the directors feel justified in stating they confidently believe the profits of this company will be more than sufficient to pay dividends of at least 50 per cent, on the nominal capital, and will exceed those of the company working th& English patent, which, having only been formed a little over twelve months, has entered into a contract which will yield the return, by way of annual dividends, of a sum equal to the whole paid-up capital of the company of 34,0002." At the time at which this prospectus was issued the- period had not arrived at which " profits " in a commercial sense could have been acquired by th& English company ; but the article had been sold in the English market and received with some favour, and an agreement had been entered intO' by the company with a merchant or broker in Loudon to take all they could make. The plain- tiff, influenced partly by the above statement in the prospectus, partly from information derived from another source, and partly by the favourable opinion he had formed of the article to be manu- factured, purchased 100 shares in the French company, and paid the deposit. He had nO' connexion with the English company. Owing to various circumstances, the hopes held out in the prospectus were not realised, and the French Date-Coffee Company was ultimately wound up ; and the plaintiff sought to recover from the defendants the sum he had paid as deposit-money and the amount of calls for which he had become and would become liable, as damages : — Held, that the statements complained of, though ex- pressing the strongest confidence that the com- pany referred to would be successful and would make large profits by the sale of the article to be manufactured, could not fairly be read as- alleging that profits in a commercial sense had actually been made, and consequently that therfr was no evidence which could be properly left to a jury. Bellam v. Tuclwr, 13 Q. B. D. 562 — Denman, J. Amount of Purchase-money paid to Vendors.] —The plaintiffs, by one of their directors, who was g.lso their stockbroker, were induced to take shares in the defendant company by means of a prospectus issued by the directors of the defen- dant company, also defendants to the action. 347 COMPANY — Formation, Constitution, and Incorporation. 348 ■whereby it was stated that the purchase-money paid to the vendors for the company's business was 36,O00Z., whereas, in fact, of that sum 6,000Z. was paid to a promoter who was in no sense a vendor. Such promotion money was paid under a parol agreement between the true vendor and the promoter, to which no reference was made by the prospectus : — Held, that the statement as to the purchase-money was a material misrepre- sentation, and that, the plaintiffs' agent having relied upon it, the plaintiffs were entitled to rescission as against the company, and to damages as against the directors who issued the fraudulent prospectus. Capel v. Sim's Ships Compositions Company, 57 L. J., Ch. 713 ; 58 L. T. 807 ; 36 W. E. 689— Xekewich, J. Paragraph and Marginal Note — Construc- tion.] — In one of the paragraphs of a prospectus issued by the directors of a company there was a statement that " the completion of the works will enable the company to increase their pre- sent capacity for manufacture from 400 to 1,000 tons per annum " ; and in the margin there was this note : " Increase of present manufacture." Bach paragraph of the prospectus had a mar- ginal note indicating its contents. The jury found that tne marginal note, coupled with the statement against which it was written, amounted to a statement that the present manufacture of the works was 400 tons per annum, and that this was a fraudulent misrepresentation : — Held, by the Court of Appeal, that the paragraph and the marginal note could only be construed in one way as referring to the capacity of the works for manufacture, and that therefore the question whether the two taken together could be con- strued so as to imply that the present manufac- ture was 400 tons per annum ought not to have ■been left to the jury : — Held, by the Queen's Bench Division, that the construction of the prospectus was for the judge and not for the jury. Moore v. Explosives Co., 56 L. J., Q. B. 235— C. A. c. Sisclosure of Contracts. Companies Act, 1867, s. 38— Parol Agree- ment.] — The plaintiffs, by one of their directors, who was also their stockbroker, were induced to take shares in the defendant company by means of a prospectus issued by the directors of the de- fendant company, also defendants to the action, whereby it was stated that the purchase-money paid to the vendors for the company's business was 36,0002., whereas, in fact, of that sum 6,000Z. was paid to a promoter who was in no sense a vendor. Such promotion money was paid under a parol agreement between the true vendor and the promoter, to which no reference was made by the prospectus : — Held, that the agreement was such a contract as ought to have been dis- closed by the prospectus, as provided by s. 88 of the Companies Act, 1867. Capel v. Sim's Ships Compositions Company, 57 L. J., Ch. 713 ; 58 L. T. 807 ; 36 W. R. 689— Kekewich, J. Abridged Prospectus.] — An " abridged prospectus " not containing the date of, nor the names of the parties to, a contract for the sale of a patent to be worked by the company, to trus- tees on behalf of the company: — Held to be fraudulent within s. 38 of the Companies Act, 1867, although it stated where full prospectuses could be obtained. White v. Saymen, 1 C. & E. 101— Mathew, J. d. Froceeding'S for Misrepresentation. Burden of Proof— Ambiguous Ueaning. ]— The prospectus of a company which was being formed to take over ironworks, contained a statement that " the present value of the turnover or out- put of the entire works is over 1,000,000Z. sterling per annum." If that statement meant that the works had actually in one year turned out pro- duce worth at present prices more than a mUlion, or at that rate per year, it was untrue. If it meant only that the works were capable of turn- ing out that amount of produce it was true. In an action of deceit for fraudulent misrepresenta- tion whereby the plaintiff was induced to take shares, he swore in answer to interrogatories that he " understood the meaning " of the statement "to be that which the words obviously con- veyed," and at the trial was not asked either in examination or cross-examination what inter- pretation he had put upon the words: — ^Held that the statement taken in connexion with the context was ambiguous and capable of the two meanings ; that it lay on the plaintiff to prove that he had interpreted the words in the sense in which they were false, and had in fact been deceived by them into taking the shares, and that as he had as a matter of fact failed to prove this, the action could not be maintained. Smith V. Chadwich, 9 App. Cas. 187 ; 50 L. T. 697 ; 32 W. K. 687 ; 48 J. P. 644— H. L. (B.). Held, by Lord Bramwell, that the statement was capable only of the meaning in which it was untrue, and that the plaintiflf had proved that he had understood it in that sense, but that there was not suifioient evidence that the statement was fraudulent on the part of the defendants. n. Company Insolvent when Proceedings com- menced.] — ^Where a person has been induced to take shares in a company by misrepresentation contained in the prospectus, the mere circum- stance that the company is insolvent at the time when he takes proceedings to rescind his con- tract to take shares does not, in the absence of countervailing equities, deprive him of his right to rescind. Carling v. London and Leeds Banh, 56 L. J., Ch. 321 ; 56 L. T. 115 ; 35 W. E. 344— Stirling, J. On the 6th of September, C. applied for shares in a company, being induced so to do by mis- representations in the company's prospectus. On the 7th of September he received notice of allotment. On the 22nd of September he wrote repudiating his contract on tlie ground of the misrepresentation, and on the same day com- menced an action for rescission. On the 24:th of September he moved to have the register of members rectified by removing his name there- from, and on the same day a petition for the winding-up of the company was presented, upon which an order was afterwards made. The company was insolvent, and had been so pre- viously to the 22nd of September, but had not stopped payment, and was issuing advertise- ments for applications for shares. Nearly all the debts of the company had been contracted before the 6th of September r — Held, that C. S49 COMPANY — Formation, Constitution, and Incorporation. 350 was entitled to have his name removed from the register. lb. Delay — Waiver — Distinct Uisrepresenta- tions.] — H. desired to repudiate his shares in a company, and relied on two distinct misrepre- sentations contained in the prospectus. The company was in course of being wound up, and the liquidator opposed H.'s application. The court held that, as to the first misrepresentation complained, H. had applied too late. The liqui- dator, on the authority of WJdtelioiise's case (3 L. K., Eq. 790), than contended that H. was therefore precluded from raising a case on the second misrepresentation : — Held, that the fact of H. failing on the first misrepresentation did not preclude him from raising a case on the second misrepresentation, there being no allega- tion of delay in proceeding after discovery by H. of the second misrepresentation, and no allega- tion that the two misrepresentations were in anywise connected with each other. Held, also, that ^VhiteJtmse's case (ubi sup.) did not decide that the waiver of one point was a waiver of all; but that the waiver of an objection that there was a discrepancy be- tween a company's prospectus and its memo- randum and articles of association amounted to a waiver of any other discrepancy. Held, therefore, that H. was entitled to have his name removed from the register of share- nolders. Sale, Eao parte, London and Pro- vincial Electric Lighting Company, In re, 55 li. T. 670— Chitty, J. Discontinaance of Proceedings.] — An action was brought to avoid a contract to take shares on the ground of misrepresentation in the pro- spectus. The plaintiff informed the company he should discontinue proceedings : — Held, that by so doing and taking no further steps for nine months, he had elected to adopt the contract, and could not avoid it. Reid v. London and Staifordshire Fire Insmranee Com- pany, 53 L. J., Ch. 351 ; 49 L. T. 468 ; 32 W. E. 94— Mathew, J. Anterior Sale hy Shareholder of some of Shares taken.] — ^Where a shareholder in a company has sold some of the shares originally taken by him, he is not thereby deprived of his right to have the contract (which is a severable one) rescinded as to the remaintder on the ground of fraudulent misrepresentations in the company's prospectus, provided that the shares sold were parted with before the fraud was discovered by the share- holder. West, Ex parte, Movmt Morgan ( Wegf) Gold Mine, In re, 56 L. T. 622— Kay, J. Voting at Suhseqnent meeting.] — ^Where after issue joined and notice of trial given in an action by a shareholder to have his name removed from the register of shareholders on the ground of fraud, the plaintifE attended and voted at a meeting of shareholders held in the liquidation of the company : — Held, that the issue of the writ was a definitive election to rescind, and that this election was not qualified by the subsequent voting at the meeting. FovXIies v. Quartz Sill CoTisolidated Gold Mining CoTnpany, 1 C. & B. 156— C. A. Notice — Delay.] — The provisions of articles 93, 97, of table A to the Companies Act, 1862, for the service of notices by a company on its members, apply only to notices relating to the ordinary business of the company, and service in the way there pointed out is not sufficient for the purpose of fixing a shareholder with knowledge of a misrepresentation which would entitle him to repudiate his shares, unless he had been guilty of laches after notice of the misrepresentation. London and Staffordshire Fire Inswanee Com- pany, In re, Wallace's case, 24 Ch. D. 149 ; 53 L. J., Ch. 78 ; 48 L. T. 955 ; 31 W. R. 781— Pearson, J. Measure of Damages.] — The amount of damages to be recovered by a plaintifE is the difference between the price paid by him for the shares and the real value of the shares at the time of allotment ; such value must be ascertained not by the market value of the shares at the time, but by the light of subse- quent events, including the result of the winding-up of the company. Pceh v. Berry, ante, col. 344. Persons who had taken stock upon the faith of misrepresentations in a prospectus are en- titled to damages to be measured by the difference between the actual value of the stock purchased and the price paid for it. Arnison v. Smith, 59 L. T. 627 — Kekewich, J. Affirmed, 41 Ch. D. 348—0. A. 2. MEMORANDUM AND ARTICLES OF ASSOCIATION. Signature to Memorandum by Agent.]— ^C. verbally authorized 0. to sign on his behalf the memorandum of association of a company. 0. accordingly signed the name of C. to the memorandum without his own name appearing. The company being in course of winding up, C. was put on the list, and applied to have his name removed, on the ground that he had never signed the memorandum nor agreed to take shares : — Held, that there being nothing in the Companies Act, 1862, to show that the Legis- lature intended anything special as to the mode of signature of the memorandum, the ordinary rule applied that signature by an agent is suffi- cient ; that although by s. 11 of the act a sub- scriber is bound in the same way as if he had signed and sealed the memorandum, still the memorandum is not a deed, and it is not neces- sary that the authority to sign it should be given by deed ; that though it was irregular for 0. to sign C.'s name without denoting that it was signed by 0. as his attorney, the signature was not on that ground invalid ; and therefore that 0. was not entitled to have his name removed from the list. Whitley ^ Co., In re, Callan, Ex parte, 32 Ch. D. 337 ; 55 L. J., Ch. 540 ; 54 L. T. 912 ; 34 W. R. 505— C. A. Appointment of Directors.] — See infra, II.» 2, a. Borrowing Powers and Mortgages.] — See infra, IV., 1 ; IV., 2, a. In relation to Shares and Calls.] — See infra, VI., 4 I VI., 8. In relation to Dividends.] — See infra, VII. In relation to Contracts.] — See infra, VIII. 351 COMPANY — Formation, Constitution, and Incorporation. 352 Alteration of Articles by Besolution.] — See infra, IX. Mode of taking Poll.]— &« infra, IX. Effect of, on Distribution of Assets.] — See infra, XI., 8, b. Qnalification Shares.] — See infra, XI., 15, a. Subscribers to Memorandum.] — See infra, XI., 15, c. Company limited by Guarantee.] — See infra, XL, 15, g. 3. EEGISTRATION. a. Of Companies. Friendly Society.] — A society which has been registered under 8. 8, sub-s. 5, of the Friendly Societies Act, 1875, pursuant to the special authority of the Treasury, is excepted from the provisions of s. 4 of the Companies Act, 1862. J'eat V. i'owler, 55 L. J., Q. B. 271 ; 34 W. E. 366— D. Association having for its Object the Ac- quisition of Gain — Gain by Individual Mem- bers.] — T. was the president of a loan society. The objects of the society were to form a fund, from which money might be advanced to enable shareholders to build or purchase a dwelling- house or other buildings, or to lend money to each other on approved personal security ; five per cent, interest was to be charged on all moneys advanced by the society. The society consisted of more than twenty members, and was not registered under any statute. The society advanced a sum of money to the de- fendants who signed promissory notes by way of security for the loan ; and when T. went out of oflBce, he indorsed the promissory notes to the plaintiff, who succeeded him. The plaintifi having sued upon the notes for the benefit of the society : — Held, that the society, not having been registered, was rendered illegal by the Companies Act, 1862 (25 & 26 Vict. c. 89), s. 4, it being an association having " for its object the acquisition of gain," within the meaning of that enactment ; that the plaiutiil could not be in a better position than the society, and there- fore could not recover upon the promissory notes. Padstow Total Loss and Collision Assurance Association, In re (20 Ch. D. 187), followed. Jtennings v. Hamm.ond (9 Q. B. D. 225) approved. Slrnw V. Benson, 11 Q. B. D. 563 ; 52 L. J., Q. B. 575 ; 49 L. T. 651—0. A. Formation before the Companies Act, 1862 — Change of Members.] — An association, consisting of more than twenty persons, was formed before the commencement of the Com- panies Act, 1862, to receive contributions from the members, and sell the money in hand, from time' to time, in shares varyingfrom 201. to 1002., to the highest bidder among them. The pre- miums paid by the purchasers were divided as profits among all the members. When the amount of the contributions and profits of a member who had purchased a share equalled the amount of such share, or, in the case of a member who did not borrow, when the amount of his con- tributions and profits equalled the amount of the share in respect of which he had joined, and he was paid off, membership ceased in respect of such share. New members, however, were con- tinually joining, and the existence of the society was continuous : — Held, that the association was not "formed " within the meaning of s. 4 of the act on each occasion of a change of mem- bership, and did not require to be registered under the act. Skaw v. Simmons, 12 Q. B. D. 117 ; 53 L. J., Q. B. 29 ; 32 W. E. 292— D. Freehold Land Society— Trustees.] — The Eastwood View Freehold Land Society, consist- ing of more than twenty persons, was constituted by a deed of trust, made between the trustees and the members, incorporating the rules of the society. By the rules of the society, its object was stated to be to purchase a freehold estate, and to divide it into lots, and to apportion them among the members ; but the right to get, win, sell, lease, or dispose of the coal or minerals was not to be conveyed, but to "remain vested in the trustees, who shall have full power to sell, lease, get or win the coals, at such price or prices, and in such manner as they may think best, the profits or proceeds of which shall be divided amongst the shareholders in the pro- portion," &c. The trustees of the society were three in number. In an action by the trustees of the society against a member to recover arrears of contributions and fines payable by him in respect of his lots : — Held, that the society carried on no business other than the business of mining ; and that the business of mining was carried on by the trustees of the society as trustees only, and not as agents or directors, and that, as they were fewer than twenty, the so- ciety was not within the terms of the Companies Act, 1862 (25 & 26 Vict. c. 89), s. 4, so as to require registration. Crowtlier v. Thorley, 50 L. T. 43 ; 32 W. E. 330 ; 48 J. P. 292— C. A. In 1873 an association of more than twenty persons was formed for the object, as stated in its deed of settlement, of purchasing a freehold estate and reselling it in allotments to the mem- bers of the association. The deed was executed by all the members, the name of each, the number of his allotment, the total amount he was to pay, and the amount of his monthly pay- ment to be made in respect of it, being specified in a schedule to the deed. The property was vested in trustees, and its management was vested in a president, vice-president, treasurer, secretary, and a committee. The deed contained provisions for the conveyance to the members of their allotments when they had paid up the whole amount payable in respect of them, and for forfeiture and sale of the allotments of de- faulting members. Powers were given to the committee to make roads, drains, &c., on the land, and powers were given to the trustees of borrowing money on mortgage with the consent of a general meeting. When all mortgages had been .paid off and all the allotments had been conveyed the society was to come to an end. The society was not registered under the Com- panies Act, 1862 :— Held, that the society was not an association formed for the purpose of carrying on any business that had for its object the acquisition of gain, and was not made illegal by the Companies Act, 1862, s. 4. Crowtlwr v. TliorUy (32 W. E. 330) I'ollowed ; Wigfield v. Potter (45 L. T. 612) approved. Siddall, In re. 353 COMPANY — Formation, Constitution, and Incorporation. 354 29 Ch. D. 1 ; 54 L. J., Oh. 682 ; 33 W. B. 609— C. A. IL. T. 114; Unregistered Loan Society of less than Twenty Members — Snbseciaent Increase of Members.] — An unregistered money club, which in its inception comprises less than twenty members, becomes an illegal association within s. i of the Companies Act, 1862, so soon as it comprises upwards of twenty members. Such a society is none the less within the mischief of the act because its business is carried on and managed by a committee of seven members as the agents of the society, although they may have full powers as to management and may make bye-laws. Orowther v. Thorley (32 W. R. 8.30) distinguished. Poppletmi, Escparte, Thomas, In re, 14 Q. B. D. 379 ; 54 L. J., Q. B. 336 ; 51 L. T. 602 ; 33 W. R. 583— Cave, J. In 1881 seven persons formed a loan society, and when business was commenced their mem- bers had increased to twenty. In June, 1883, the society was registered under the Companies Act, 1862, with the knowledge and consent of all the members. In 1881 the society advanced lOOZ. to a borrowing member, repayable by monthly instalments, and he duly paid the instalments as they fell due untU December, 1883, when he became bankrupt : — Held, that under the circum- stances the inference was, that all the members had, either expressly or by acquiescence, mutually agreed that all the transactions of the society previous to its registration should continue to be binding on the registered society ; and, conse- quently that the registered society could prove for the balance of the loan. lb. Company Valid till Segistration held Void.] — T. as trustee on behalf of a company about to be formed, purchased from the trustee, in liqui- dation of H.'s affairs, the business carried on by the latter ; and by an agreement made between T., H., and the trustee, H. agreed with T., both personally and on behalf of the proposed com- pany, that so long as the company carried on the business, H. would not engage in any similar business within ten mUes of the Exchange. The company subsequently formed was alleged to consist only of T.- and his six nominees. While the company was still carrying on its business, H. became an employ^ of B. & Co., carrying on a similar business in London : — Held, that H. had broken his covenant, and that a company, duly certified, is a valid company under the Companies Act, till the certificate is held void. Hill ^ Co. V. Hill, 55 L. T. 769 ; 35 W. R. 137 ; 51 J. P. 246— Kekevrich, J. Name struck off — ^Bestoration,] — The power given to the court by sub-s. 5 of s. 7 of the Companies Act, 1880, to restore to the register of joint stock companies the name of a company which has been struck off by the registrar under the provisions of that section, if the court is " satisfied that the company was at time of the striking off carrying on business or in operation," applies to the case of a company which at the time of the striking off was carrying on business only for the purpose of winding up voluntarily and realizing its assets. Outlay AssuroTiee Society, In re, 34 Ch. D. 479 ; 56 L. J., Ch. 448 ; 56 L. T. 477 ; 35 W. R. 343— North, J. The winding-up of a company began in 1880, and a call was made in May, 1883. The registrar of joint-stock companies sent notice to the office of the company as required by s. 7 of the Com- panies Act, 1880, but by an accident the notice could not be delivered and it was returned. In April, 1887, he struck the name of the company off the register. Nothing appeared to have been done by the company between 1883 andl888, but on petition by the liquidator to have the name restored, and on production of evidence that some debts were still unpaid as also some calls, the court directed the company's name to be restored to the register. Carpenter^s Patent Davit Company, In re, 1 Meg. 26 — North, J. b. List of SCembers and Summary. Forwarding to Registrar — Power of Magis- trate to Inquire into Accuracy.] — According ta the true construction of s. 26 of the Companies Act, 1862, the forwarding to the registrar of joint-stock companies of a list of members and summary which upon the face of them purport to satisfy the requirements of the act, is not a sufficient compliance with that section unless such list and summary are in accordance with the facts ; and a metropolitan police magistrate- has jurisdiction upon a summons for penalties under s. 27 to inquire into the truth or falsehood of the statements contained in the list and sum- mary so forwarded, and is not precluded from hearing evidence on the complaint brought before- him merely by the circumstance that the list and summary are in accordance with the company's register. Briton Medical and Gevsral Life Association, In re, 39 Ch. D. 61 ; 57 L. J., Ch. 874 ; 59 L. T. 134 ; 37 W. R. 52— Stirling, J. Such register is only primS, facie evidence of certain matters, and upon evidence that it con- tained fictitious entries the magistrate would be justified in disregarding such entries, and in treating a summary based upon them as false and misleading. But questions of nicety as to- the title to shares and the right to be on the register cannot properly be determined by a magistrate upon such a summons, and with reference to such questions he ought to accept the company's register as practically conclusive.. ffrosvenor JBank and BiscovMt Company v. Boaler (49 J. P. 774) followed. lb. The G-. company bought the business of another company, taking over all the assets, the agree- ment stating . that 10,000 shares, the nominal capital of the old company, were to be treated as paid up. In the return to the registrar the- summary stated that there were 10,635 shares, a call of 10s. made on each share ; total calls paid 4,481Z. ; calls unpaid 836Z. On a summons under 25 & 26 Vict. c. 89, s. 27, for default in not for- warding a summary : — Held, that the company were rightly convicted, though the misrepresenta- tion was not fraudulent, as the return was mis- leading, and purported that calls had been made on each of the 10,000 shares. Grosvenor Bank V. Boaler, 49 J. P. 774— D. u. Inspection of Keg-isters. Taking Copies — Shareholder Interested in Bival Company.]— The right of inspection and perusal of the register of debenture stockholders, which by s. 28 of the Companies Clauses Act, 1863, is given to mortgagees, bondholders, deben- N 855 COMPANY — Fromoters and Directors. 356 ture stockholders, shareholders, and stockholders of the company, includes a right to take copies. The fact that a person has taken his stock in a company at the instance of a rival company, and for the purpose of serving the interests of the rival company, does not disentitle him to the assistance of the court in enforcing this statutory right : — Forrest v. Manchester, Sheffield and Zincolnshire Railway (4 D. F. & J. 126) held not to apply, inasmuch as that case proceeded on the ground that the plaintiff there purported to sue on behalf of himself and the other share- holders. Mutter V. Eastern and Midlands Mailway, 38 Ch. D. 92 ; 57 L. J., Ch. 615 ; 59 L. T. 117 ; 36 W. E. 401—0. A. Grounds for Inspection — Injunction.] — The right given to holders of stock and debentures by the Companies Clauses Act, 1845, ss. 45, 63, and by the Companies Clauses Act, 1868, s. 28, Of inspecting the registers of a company, is not confined to an inspection of the names and addresses only of the holders of stock and debentures, may be exercised without assigning any reason for requiring inspection, and can be enforced by an injunction restraining inter- ference by the company with the stockholder in the exercise at all reasonable times of his statutory right, without his being compelled to apply for a mandamus calling upon the directors to allow inspection. Holland v. Dickson, or Crystal Palace Company, 37 Ch. D. 669 ; 57 L. J., Ch. 502 ; 58 L. T. 845 ; 36 W. R. 320— Chitty, J. 11. FBOMOTERS AND SIBECTOBS. 1. PROMOTBES. Who are — Solicitor.] — A summons was taken out by the liquidator of a company under s. 165 of the Companies Act, 1862, for a declaration that the solicitor of the company was a promoter, and guilty of breach of trust and misfeasance as such promoter, and also as solicitor of the com- pany ; that he was, therefore, not entitled to payment for his professional services, or that his bill of costs might be taxed, with a direction that all improper charges and disbursements should be disallowed, and that he might be ordered to repay certain sums received by him. The company had been fraudulently started, and had been ordered to be wound up : — Held, that the solicitor was not a promoter, and that there was no evidence to shew that he had been guilty of fraud or misfeasance within s. 165, and that he was entitled to his costs on accounting for the sums already received by him. Great Wheal Pol- gooth. In re, 53 L. J., Ch. 42 ; 49 L. T. 20 : 32 W. E. 107 ; 47 J. P. 710— V.-C. B. Fnrchase of Mine by Syndicate — Besale to Company — Resoissiou impossible.] — On the 1st of February, 1873, five persons (one of whom was a solicitor and conducted the negotiations) purchased a leasehold mine for 5,0001. with the view of reselling it to a company to be formed : but they had at that time taken no steps to form any company. They completed their purchase on the 17th of March, 1^73, the purchase-money being paid out of their own moneys, and on the 4th of April they entered into a provisional con- tract with a trustee for an intended company for the sale of the mine to the company for 18,0002. On the 8th of April the company was registered under the Companies Acts, its principal object being, as stated in the memorandum of associa- tion, the purchase of the mine, and in its articles the contract of the 4th of April, 1873, was adopted and confirmed, and four of the vendors were named as directors : but the contract of the 1st of February, 1873, was not disclosed to the company. The whole of the shares were placed by the vendors, and the share capital (30,000?.) paid by them. At the same time they received 18,000Z. from the company as the purchase-money for the mine. In 1882 the company was wound up voluntarily, and in the course of the winding- up the facts relating to the purchase of the mine by the vendors became known to the company. In 1883 the company allowed judgment by default to go against them in an action by the lessor to recover possession of the mine. In 1884 the company commenced two actions against the executors of three deceased vendors and the two surviving vendors to recover the secret profits made by the vendors on their sale to the company, on the ground that they stood in a fiduciary position to the company : — Held, first, that the evidence did not prove that the vendors when they purchased the mine were promoters of, or in a fiduciary position towards, the company which was ultimately formed ; secondly, that assuming that the vendors com- mitted a breach of duty in not informing the company after it was formed that the mine was their own property, and consequently that the company might have rescinded the contract, yet as rescission was now impossible the company could not recover from them the profit which they had made. Ladywell Mining Compamy v. Brookes or Hnggons, 35 Ch. D. 400 ; 56 L. J., Ch. 68 1 ; 56 L. T. 677 ; 35 W. E. 785— C. A. Secret Commission — Agents for Vendor — Bight to Eeoover.] — Although the promoter of a com- pany cannot be considered an agent or trustee for the company, the company not being in existence at the time, yet the principles of the law of agency and trusteeship are applicable to his case, and he is accountable for all moneys obtained by him from the funds of the company without the knowledge of the company. Lydney and Wigpool Iron Ore Co. v. Bird, 33 Ch. D. 85 ; 55 L. J., Ch. 875 ; 55 L. T. 558 ; 34 W. K. 749— C. A. The fact that a promoter is acting as agent for the vendors in getting up a company for the purchase of their property does not exonerate him from accounting to the company, when formed, for any secret profit made by him. In estimating the amount of the secret profit for which a promoter was accountable to the com- pany, he was held entitled to be allowed the legitimate expenses incurred by him in forming and bringing out the company, such as the reports of surveyors, the charges of solicitors and brokers, and the costs of advertisements ; but not a sum of money which he had expended in obtaining from another person a guarantee for the taking of shares. li. Whether Partner liable to Bepay.] — J.. a member of a firm of iron -merchants, was a promoter of a company for the purchase of mines, and was held accountable for a secret profit which he had made in the course of such promo- 357 COMPANY — Promoters and Directors. 358 tion. W., his. partner, received from him a sum of money out of the profit made by him in con- sideration of his guaranteeing the taking of cer- tain shares. There was no evidence that W. tnew of the profit that B. made, or knew that the sum received by him came out of the moneys of the company : — Held, that the promotion of companies not being within the scope of the partnership, W. was not accountable for the profits made by J., or for the money received by himself as the consideration for the guarantee. li. 2. DIRECTORS, a. Appointment. Suhscribers of memorandum of Association.] — The articles of association of a company followed Table A of the Companies Act, 1862 ; clauses 52 and 53 of that table being to the effect that the number of directors shall be determined by the subscribers of the memorandum of association, and that until directors are appointed the sub- scribers of the memorandum of association shall be deemed to be directors. There was also a special article that the number of directors should not be less than three nor more than ten, and that two should form a quorum. Directors were appointed at a meeting attended by two only of the subscribers of the memorandum of associa- tion : — Held, that the special article only applied when the directors had been duly appointed, and that, the directors having been appointed at a meeting consisting of a minority of the sub- scribers of the memorandum of association, the appointment was invalid. Sowieach Coal Com- pany V. Teague (5 H. & N. 151) held not to have been impugned by York Tramways Company v. Willows (8 Q. B. D. 685). London and South- ern Counties Freehold Land Company, In re, 31 Ch. D. 223 ; 55 L. J., Ch. 224 ; 54 L. T. ii ; 34 W. E. 163— Chitty, J. b. Powers and Iiiabilities Generally. Powers as to Ezpenditar6 of Funds — Costs of "Unsuccessful Petition to Wind up.] — A com- mittee of directors presented a petition to wind up a company, which was dismissed with costs. They then passed a resolution to pay the costs of the petition out of the assets of the company : — Held, that petition to wind up the company was not " a legal proceeding on behalf of the company within article 100 of the articles of association of the company,' and that the resolution to pay the costs of the petition out of the company was ultra vires. Smith v. Manchester (Duke'),2i Ch. D. 611 ; 53 L. J., Ch. 96 ; 49 L. T. 96 ; 32 W. R. 83— V.-C. B. Proxies — Stamping for Bevenue and Postage.] — The funds of a company ought not to be used for printing or sending out proxy- papers which tend in any way to influence the votes of the shareholders receiving them (e.g., proxy-papers with the names of the proposed proxies therein), or for stamping or paying the return postage on proxy-papers of any kind : — Semble, it is within the powers of a company to print and send out proper proxy-papers— that is,, such as will not tend to influence the votes of the shareholders. Studdert v. Orosijenor, 33 Oh. D. 528 ; 56 L. J., Ch. 689 ; 55 L. T. 171 ; 34 W. R. 754 ; 50 J. P. 710— Kay, J. Costs of Prosecutions for Libels on Direc- tors and Company.] — The cost of actions for libel affecting the private characters of directors, and only incidentally injuring a company, ought not to be paid out of the funds of the company ; but the costs of proceedings for libel directly affect- ing the company may be rightly paid out of the company's funds. lb. Power to Lend on Security of Society's own Shares.] — See Orimwade v. Mutual Society, post, col. 360. Power to Transfer Qualification Shares.] — See South London Fish Marhet Company, In re, post, col. 411. Injunction restraining Exclusion by Co-direc- tors.] — An injunction will be granted in an action by a director of a company against his co- directors to restrain them from excluding him from acting as director, although, in the opinion of the directors, he is unfit to be a director of the company by reason of alleged misconduct. Kyshe v. Altwas Gold Company, 36 W. R. 496 —North, J. Directors of Newspaper — Liability for Crim- inal Libel.]— &e Defamation. Liability for Bills accepted ultra vires.] — A bill of exchange payable to order and addressed to the B. & I. Co., which was incorporated undei local acts and had no power to accept bills, was accepted by the defendants, who were two of the directors of the company, and also by the secretary, as follows: — "Accepted for and on behalf of the B. & I. Co., G. K., F. S. P., directors — B. W., secretary." The bill was so accepted and given by the defendants to the drawer, the engineer of the company, on account of the company's debt to him for professional services, and although he was told by the defendants that they gave him the bill on the understanding that he should not negotiate it, but merely as a recognition of the company's debt to him, as the company had no power to accept bills, yet the defendants knew that he would get it discounted, and they meant that he should have the power of doing so. The bill was indorsed by the drawer to the plaintiffs for value, and without notice of the understanding between him and the defendants : — Held, that the defendants were personally liable, as by their acceptance they represented that they had authority to accept on behalf of the company, which being a false representation of a matter of fact and not (Jf law, gave a cause of action to the plaintiffs, who had acted upon it. West London Commercial Bank v. Kitson, 13 Q. B. D. 360 ; 53 L. J., Q. B. 345 ; 50 L. T. 656 ; 32 W. R. 757— C. A. Affirming 47 J. P. 824— D. Liability for Over-issue of Debentures.]— &<< post, col. 373. Prosecution of. Petition for.] — See Denham, In re, post, col. 442. Sale by, to Company— Ratification at General Meeting— Vendor's Eight to Vote.]— Where a N 2 859 COMPANY — Promoters and Directors. 360 voidable contract, fair in its terms and within the powers ol the company, had been entered into by its directors with one of their number as sole vendor : — Held, that such vendor was entitled to exercise his voting power as a share- holder in general meeting to ratify such con- tract ; his doing so could not be deemed oppres- sive by reason of his individually possessing a majority of votes, acquired in a manner autho- rised by the constitution of the company. North- West Transportation Company v. Beatty, 12 App. Gas. 598 ; 56 L. J., P. C. 102 ; 57 L. T. 426 ; 36 W. K. 647— P. C. c. Ijiability for Misfeasance. Non-disclosnre of Director's Interest in Pro- perty Sold.] — In 1871, a partnership, consisting of the respondent and five other persons, pur- chased certain cpal areas for 5,500Z. In 1873 a company was formed for the purchase of these coal areas at a price, as fixed in the articles of association, not exceeding 42,000?. — that is, 12,000Z. in cash and 30,00OZ. in shares. The directors, of whom the respondent was one, effected the purchase at the above maximum price. The company was ordered to be wound up in 1875, and in 1878 the coal areas were sold with other property for 14,5002. The appellant, a contributory, as holder of paid-up shares, applied under s. 165 of the Companies Act, 1862, to make the respondent liable for misfeasance or breach of trust, on the ground that he had joined in purchasing the coal areas for the company at an overvalue, and without disclosing his interest to the other directors : — Held, upon the evidence, that it had not been proved that the price paid by the company was excessive, nor that the respondent had concealed his interest ; and that the onus of proof lay upon the appellant. Cavendish- Bentinok v. I'emi,, 12 App. Cas. 652 ; 57 L. J., Ch. 552 ; 57 L. T. 773 ; 36 W. E. 641— H. L. (E.) Eescission Impossible — Proceedings by Contributory.] — Semble, that if misfeasance had been made out, relief could have been obtained against the respondent, notwithstanding that rescission of the purchase by the company had become impossible, and that proceedings under s. 165 cannot be maintained by a contributory who has no pecuniary interest in any increase to the assets of the company which may result from the proceedings, lb. Breaches of Trust — Indirect Sanction.] — A director of a company from the time that he becomes aware of breaches of trust by his co- directors incurs liability, even though he did not directly sanction them, and may be held personally answerable for any losses sustained thereby, if he remains passive and omits to take proper steps to prevent such misconduct, and to institute, if necessary, proceedings against his colleagues in default. Jackson v. Munster Banlt, 15 L. E., Ir. 356— V.-C. False Balance-sheets.] — The oflBcial liquidator of a loan society, which was being wound up, moved to make its directors and ofiBcers liable for losses arising from 100 loan transactions. He submitted (1 ) that, as they had advanced large sums by way of loans on the security of the society's own certificates, they had acted ultra vires, because by the memorandum of associa- tion, and the articles, they were expressly for- bidden to accept as security for re-payment of advances " personal securities, either by bonds, bills of exchange, or promissory notes ; " (2) that, if this were intra vires, the other securities which they had accepted were not bona fide ones ; (3) that, if their loans were not fraudulent, they had been guilty of such gross negligence and imprudence as to make them liable ; (4) that they had concealed the true state of the affairs of the society from the members by means of false balance-sheets : — Held, that the charges of fraud and gross negligence had not been sus- tained ; that the directors could in no sense be held responsible for the faulty basis on which the society had been formed, or for the errors of the actuaries and accountants ; that the members had been cognisant of and ratified all that had been done ; that the society's own certificates were not such personal security for advances as was forbidden by the articles, and that it was not ultra vires the directors to advance money on such security (as it was security of personal estate as distinguished from personal security) ; and that the motion must be dismissed with costs. Orimwade v. Mutnal Society, 52 L. T. 409— Chitty, J. Acts of Co-Directors — Eajrment of Divi- dend out of Capital— Constructive Notice.]— An innocent director of a company is not liable for the fraud of his co-directors in issuing to the shareholders false and fraudulent reports and balance-sheets, if the books and accounts of the company have been kept and audited by duly appointed and responsible officers, and he has no ground for suspecting fraud. Consequently, if such a director has received, together with the other shareholders, dividends declared and paid in pursuance of such reports and balance-sheets, such dividends having been, in fact, payments out of capital, he cannot be called upon, under s. 165 of the Companies Act, 1862, to repay the dividends so paid, nor even the dividends received by himself. A director is not bound to examine entries in any of the company's books ; nor is the doctrine of constructive notice to be so extended as to impute to him a knowledge of the contents of the books. Beyihavi; In re, 25 Ch. D. 752 ; 50 L. T. 523 ; 32 W. E. 487— Chitty, J.- By the articles of the plaintiff company, the directors were empowered to declare a dividend upon such estimates of account as they might see proper to recommend, so that no dividend should be payable except out of profits, and they were required annually to lay before the company a statement of the income and ex- penditure of the past year, and also a balance- , sheet containing a summary of the property and liabilities of the company ; and it was provided that the auditor should make a report to the members on the balance-sheet and ac- counts, stating whether in his opinion the balance-sheet was a full and fair balance-sheet containing the particulars required by the articles, and properly drawn so as to exhibit a true view of the state of the company's affairs. The remuneration of the directors and the man- ager was regulated bythe rate of dividend. From its commencement in 1870 until its winding up in 1882, the company earned no profits available for dividend. The directors annually submitted to the company a balance-sheet purporting to 361 COMPANY— Promoters and Directors. show a profit on the faith of which' a dividend was declared. No statement of income and ex- penditure was ever submitted to the company. The balance-sheets were prepared by the man- ager, and contained false items. The directors had no knowledge that the balance-sheets were false, but they relied exclusively upon the state- ments of the manager. In auditing the accounts, the auditor, without referring to the articles, merely certified that the accounts were a true copy of those shown in the books of the com- pany. The balance-sheets were literally copied from balance-sheets in the ledger of the com- pany, but the false items did not appear else- where in the books of the company : — Held, following Oxford Building Society, In re (35 Ch. X>. 502), that the directors, and the estate of a deceased director, were jointly and severally liable to make good sums improperly paid out of ■capital for dividends, for directors' fees and for bonuses to the manager, and that the manager and auditor were liable for damages on the same footing. Leeds Estate Building Company v. Shepherd, 36 Ch. D. 787 ; 57 L. J., Ch. 46 ; 57 L. T. 684 ; 36 W. R. 322— Stirling, J. Eepayment of Fees.] — It was provided by one of the articles of association of a company that the directors should not receive any remunera- tion for their services in any year until the members should have received a dividend for that year of 5 per cent, on the amount paid on their shares, and that then the directors should be paid for that year such sum as the company should in general meeting determine. The articles also provided that the directors should be indemnified out of the funds of the company all expenses incurred by them as directors. The oompany never paid any dividend, and was on the 17th April, 1886, ordered to be wound up. Before the order for winding-up, at a general meeting held on the 9th Feb., 1885, at which some of the directors were present, a resolution was passed allotting a sum of 1,OOOZ. to the directors for then' services for the year ending the 31st Dec, 1884. On the 17th Feb., 1885, four of the seven directors held a meeting and passed a resolution dividing the 1,000Z. among the body of directors in certain proportions. At another meeting in March the directors passed a resolution sanctioning certain bills for their expenses " as settled by the resolution of Feb. 17th." On summons by the official liqui- dator asking that the seven directors might be ield jointly and severally liable to refund the 1,000Z. and for an order of payment : — Held, that the article of association, saying that the •directors were to receive no remuneration until a dividend had been paid, had been broken, and the directors were jointly and severally liable to repay the money with interest at 4 per cent. Whitehall Court, In re, 56 L. T. 280— Kay, J. And see preceding and next case. Payment of Sivideuds out of Capital — ■"Realised Profits."] — The articles of associa- tion of a limited company provided that no ■dividends should be payable except out of ■" realised profits," and that no remuneration should be paid to the directors until a dividend of 7 per cent, had been paid to the shareholders. The business of the company consisted chiefly in lending money to builders ' on mortgages pay- able by instalments, and the directors treated, as | 362 part of the profits available for dividends, the value for the time being (upon an estimate made by their surveyor who was also their secretary) of the instalments of .principal and interest remaining unpaid by each mortgagor. Upon this footing the directors paid for several years, out of the floating capital from time to time in their hands, (1) dividends of 7J per cent, and upwards ; (2) remuneration to them- selves. Upon a summons taken out in the winding-up of the company by a creditor:— Held, that " realised profits " must be taken in its ordinary commercial sense as meaning at least " profits tangible for the purpose of divi- sion,'' and that the directors having treated estimated profits as realised profits, and having in fact paid dividends out of capital, on the chance that sufficient profits might be made, were jointly and severally liable, as upon a breach of trust, to repay, .and must repay, the sums improperly paid as dividends, and also the remuneration they had respectively re- ceived, with interest in each case at 4 per cent. Oxford Benefit Building Society, In re, 35 Ch. D. 502 ; 56 L. J., Ch. 98 ; 55 L. T. 598 ; 35 W. K. 116 — Kay, J. See Leeds Estate Building Co. V. Sheplierd, supra. Bepayment of Commission.] — The directors also, without the knowledge of the shareholders, voted and paid themselves out of the funds of the company a commission on certain purchases and sales, and entered such payment in the books of the company, but made no mention of it in their reports or balance-sheets : — Held, that they were jointly and severally liable to repay, and must repay this amount with interest at 5 per cent. lb. Payments made after Commencement of Wind- ing-up— Course of Business.]— After the pre- sentation of a petition for the winding-up of a company on the ground that it had not com- menced business within a year from its incor- poration, the directors issued new shares, and made payments for the purpose of presenting the appearance of business being carried on. The company was ordered to be wound up, and in the winding-up the official liquidator applied for payment by the directors of all moneys of the company expended by them since the pre- sentation of the petition : — Held, that the com- bined effect of ss. 153 and 165 was to make the directors prima facie liable for all moneys of the company expended by them, not in the ordinary course of business since the comnfBnce- ment of the winding-up, and that an account of moneys so expended must be taken. Neath Harbour Smelting and Rolling Works, In re, 56 L. T. 727 ; 35 W. E. 827— Chitty, J. Approval of Transferee of Shares.] — Direc- tors permitted a transfer of 19,528 shares from a substantial holder to P., a director and share- holder of the company. They had previously refused to allot these shares to him, and at the time of the transfer they bad notice of a charge, an injunction, and two charging orders against other shares held by him. They alleged that they believed that he was again in possession of considerable funds, and that they examined into the matter and approved him as transferee within the terms of their articles, which pro- vided that every transferee must be approved by the directors. P. subsequently became insolvent 368 COM.FANY— Auditors. 364 and all his shares were forfeited : — Held, that directors are not in the same position as ordinary trustees ; that the directors had, in fact, approved P. as transferee ; and that, even if they had made a mistake, they could not be, made per- sonally liable for the consequences. Fanre Mcotric Accumulator Company, In re, 40 Ch. D. 141 ; 58 L. J., Ch. 48 ; 59 L. T. 918 ; 37 W. R. 116 ; 1 Meg. 99— Kay, J. Bepayment of Brokerage for placing Capital.] — The directors paid a brokerage of 2,?. 6d. per share to a broker for placing a large number of shares. The allottee was a substantial person, and paid the amount then called up on the shares — nearly 40,000Z. — to the company. There was no evidence that he received any part of the brokerage, but he wrote a letter to the direc- tors stipulating that it should be paid to the broker. The articles provided for payment of preliminary expenses, and the memorandum, authorised things conducive to the attainment of the objects of the company : — Held, that pay- ment of brokerage was not payment for work and labour done ; that it was not conducive to the objects of the company ; that it was an un- authorised use of capital and ultra vires, and that the directors must repay it, Ih. Present for placing Shares — Statute of Limita- tions.] — S., a promoter, and subsequently a director, of the company, made an arrangement with the syndicate of vendors by which he was to receive 1,000 B shares in the company in con- sideration of his taking or placing 500 A shares. He subsequently received his 1,000 B shares. Notice of this transaction was, after the forma- tion of the company, given to the directors, but the board which received the notice consisted of persons more or less implicated in the transac- tion, and no action was taken in the matter. The company was afterwards wound up, and the liquidator took out a summons to recover from S. the value of 1,000 B shares, on the ground that his having received them was, under the circumstances, a misfeasance as against the com- pany. It was contended that he was barred by the Statute of Limitations from making his claim, the company having, through its directors, received notice of the transaction more than six years previously : — Held, that S. was guilty of a misfeasance against the company, having re- ceived the B shares under these circumstances, and that he must, the shares being now value- less, 'pay to the liquidator the amount of the value of the shares when he received them, but, as no dividend had ever been paid on the shares, he would not be required to pay any interest ; that, though notice to the directors of a com- pany was prima facie notice to the company, yet when, as in this case, it was certain that the directors would not communicate the information to the shareholders it was not, and this claim therefore was not barred by the Statute of Limi- tations. Fitzroy Bessemer Steel Company, In re, 50 L. T. 144 ; 32 W. E. 475— Kay, J. Com- promised on appeal 33 W. K. 312. Gift of Qualification Shares.]— A director of a company received from the promoters a present of the sum of l.OOOZ. to buy 100 shares in the com- pany, which was the qualification of a director, the present being expressed to bo given as part commission, in respect of certain contracts he was about to enter into at the request of the promoters, in relation to the proposed company. The director afterwards took part in making an agreement for the purchase by the company of a quarry of which the promoters were part owners, the carrying out of which was stated in the memorandum and articles of association of the company to be the iirst object of the company. The company was subsequently wound up : — Held, that the director was liable to account to the liquidator for the value of the shares, at the value at which they stood at the date he received the present, together with interest at 5 per cent, from the date of such gift. Brum' Slate Quarry Company, Inre, 55 L. J., Ch. 36 ; 53 L. T. 250— Kay, J. Practice as to.] — See infra, XI., 5. III. ATTDITOES. Duty of.] — It is the duty of an auditor in auditing the accounts of a company to inquire into the substantial accuracy of the balance- sheet, to ascertain that it contains the particulars specified in the articles of association and pro- perly represents the state of the company's affairs, and he is liable in damages for the breach of such duty. Leeds Estate Building Company V. SUpherd, 36 Ch. D. 787 ; 57 L. J., Ch. 46 ; 57 L. T. 684 ; 36 W. E. 322— StirHng, J. Bight to appoint Accountant.] — An auditor appointed under the Companies Clauses Act, 1845, is entitled to appoint an accountant under s. 108 of that act, without the consent of his co- auditor. Steele v. Sutton Gas Company, 12 Q, B. D. 68 ; 53 L. J., Q. B. 207 ; 49 L. T. 682; 82 W. R. 289— D. Bemuneration,] — Sect. 91 of the Companies Clauses Act, 1845, prevents auditors from re- covering any other remuneration than that fixed upon at a general meeting of the company. Page V. Eastern and Midlands Railway, 1 C. & B. 280— Grove, J. IV. BOBBOWINfi FOWBBS, M0BX6AGE& AND DEBENITTBES. 1. BORROWING POWERS. Hypothecation of Freight — Charge on Parti- cular Asset.] — The directors of a shipping com- pany passed a resolution authorising its brokers to hypothecate the freight of two ships during their present voyages, to secure a present advance of^ums not exceeding 5,000Z. Shortly after- wards the brokers transferred the freight of one of the ships to H. & Co. to secure an advance of 3,000Z. The transfer was signed by the brokers as managers of the company, who also gave an undertaking to collect the freight as agents to- H. & Co. An action having been brought by the debenture-holders of the company for the enforcement of their securities, and the company having gone into liquidation, H. & Co. applied for an order that the liquidator of the company should pay to the applicants out of moneys re- presenting the freight of the ship in question the sum of 3,000^. : — Held, that the company had power under its articles of association, and the: 365 COMPANY — Borrowing Powers, Mortgages, and Debentures. 366 resolutions passed pursuant thereto, notwith- standing the debenture debt, to specifically charge a particular asset for the purpose of carrying on the company's business ; and that, therefore, H. & Co.'s security was prior to that of the debenture-holders. Ward v. Royal Ex- change Shipping Company, 58 L. T, 174 ; 6 Asp. M. C. 239— Chitty, J. Statutory Prohibition — TTltra Vires.] — The re- spondents were constituted a company by an act of Geo. 2, for the purpose of recovering and preserving the navigation of the River Dee. This act was amended by subsequent acts, but none of them expressly authorised or forbade the company to borrow, till the act of 14 & 15 Vict. c. Ixxxvii., which, by s. 24, empowered the company to borrow at interest for the purposes of their acts upon bond or mortgage of the lands recovered and inclosed by them, or partly upon bond, and partly upon such mortgage, a sum not exceeding 25,000Z., and also a further sum, not exceeding 25,0002., upon mortgage of their tolls, rates and duties : — Held, that whether the earlier acts gave an implied power to borrow or not, the company was prohibited by the 14 & 15 Vict. c. Ixxxvii. from borrowing except in accordance with the provisions of that act. Wenloch (Baroness) v. River Dee Company, 10 App. Cas. 354 ; 54 L. J., Q. B. 577 ; 53 L. T. 62 ; 49 J. P. 778— H. L. (E.). By Lord Blackburn: — The law laid down by the House of Lords in Ashiwry Company v. Riehe (7 L. R., H. L. 653) applies to all com- panies created by any statute for a particu- lar purpose, and not only to companies created under the Companies Act, 1862 (25 & 26 Vict. c. 89). lb. Improvement Loan — Charge by Inclosure Conunissioners.] — The Lands Improvement Com- pany's Acts, 1853, 1855, and 1859, which empower the company to make improvement loans to landowners, including corporations holding lands, to be secured by a charge on the fee of lands to be improved under the hand and seal of the Inclosure Commissioners, do not enable a cor- poration-, bound by a prior statutory prohibition against borrowing on land beyond a. certain limit, to exceed the limit for the purpose of effecting improvements on their lands. Wenloeh (Baroness') v. River Bee Company. 38 Ch. D. 534 ; 57 L. J., Ch. 946 ; 59 L. T. 485— C. A. The Act of 1853 provided that the execution by the commissioners of any charge in pursuance of the Act should be conclusive evidence of such charge having been duly made and executed, and being a valid charge under the Act : — Held, that the section was conclusive as to the observ- ance of the formalities required by the Act, but was not conclusive as to the capacity of the land- owner to contract. lb. Equity of Lender to Payment out of Honey borrowed snbject to Creditor's Eights.] — The equitable doctrine by which the lender of money borrowed by a company ultra vires is entitled to be subrogated to the rights of creditors of the company paid out of such money, and to recover from the company the amount of their debts or liabilities so paid off, is not confined to the amount of debts and liabilities existing at the time of the advance and so paid off, but extends to debts and liabilities accruing subsequently to and paid out of such advance. Blaohbnrn Benefit Building Society v. Cunliffe, iiroohs ^ Co. (22 Ch. D. 61) discussed. Wenlock [Baroness) V. River Dee Company, 19 Q. B. D. 155 ; 56 L. J., Q. B. 589 ; 57 L. T. 320 ; 35 W. R. 822 — C. A. 2. MORTGAGES. a. Validity. Amount Sanctioned— Ultra Vires.]— By the memorandum of association of a limited com- pany the company were empowered to borrow or raise money by the issue of or upon bonds, debentures, bills of exchange, promissory notes, or other obligations or securities of the company, or by mortgage or charges on all or any part of the property of the company or its unpaid capital, or in such manner as the company should think fit. By a clause in the articles of association, it was provided that " the directors may, from time to time, at their discretion, borrow from the directors, members, or other persons, any sum or sums of money for the pur- poses of the company, but so that the moneys at one time owing shall not, without the sanction of a general meeting, exceed one-fifth of the nominal amount of the capital, or, with such sanction, one-third of such nominal amount." The directors issued debentures to the amount of 3,050Z., of which A. held 1,650J., the nominal capital of the company being 10,0002., and mort- gaged to A., for moneys advanced, lands and other property of the company for 3,9502., and the mortgage was sanctioned at a general meeting of the company : — Held, that the restriction in the clause of the articles of association was imposed on the company itself, and not merely on the directors ; that the sanction by the com- pany of the mortgage was ultra vires, and the security void as to the excess over one-third of the nominal capital. Bansha Woollen Mills Com- pany, In re, 21 L. R., Ir. 181— M. R. Powers of Directors — Mortgage of Unpaid Capital.] — The directors of a company were authorised to mortgage all or any part of the company's " properties or rights " : — Held, that the directors had power to mortgage the capital of the company for the time being uncalled. Bank of South Australia v. Abrahams (6 L. R., P. C. 265) distinguished. BToward v. Patent Ivory Manufacturing Company, 38 Ch. D. 156 ; 57 L. J., Ch. 878 ; 58 L. T. 395 ; 36 W. R. 801— Kay, J. b. Registration. Duty and Liability of Directors, etc.] — Directors, managers and other persons, standing in a fiduciary relation to a company, holding securities affecting its'property, are bound to see that their securities are properly registered, as required by the Companies Act, 1862, s. 43 ; and if they knowingly and wilfully omit to do so, they not only subject themselves to the penalty imposed by that section, but they forfeit their unregistered securities as against the general creditors of the company. Dublin Drapery Company, In re, Com;, Ese parte, 13 L. R., L:. 174— M. E. 367 COMPANY — Borrowing Powers, Mortgages, and Debentures, Duty of Solicitors.] — Solicitors of a company who had, in the performance of their duty, pro- cured a proper register to be made out, but who had no power or authority to make or compel entries in it : — Held, not liable to the personal equity arising from the non-registration of secu- rities in their hands. jDuhlin Drapery Com- j>any, In re, Cox, Mx parte, supra. Director and Creditors— Omission to Register ■without Concealment.] — Debentures in a com- pany incorporated under the Companies Act, 1862, were issued to a director of the company. They were not registered in accordance with the requirements of s. i3 of the act. The company having gone into liquidation and the validity of these debentures being contested by unsecured creditors, and also by debenture-holders, as to whom it was not shown that they had made any inquiry as to the charges on the company's property or the existence of a register : — Held, that the mere omission to register, without con- cealment, did not invalidate the debentures ; at all events as between the director and such creditors. The rule of construction laid down by Native Iron Ore Company, In re (2 Ch. D. 345), and the decisions prior to it, disapproved. The reasoning of Jessel, M. R., in Qlohe New Patent Iron and Steel Company, In re (48 L. J., Ch. 295), approved. Wright v. Horton, 12 App. Cas. 371 ; 56 L. J., Ch. 873 ; 56 L. T. 782 ; 36 W. R. 17 ; 52 J. P. 179— H. L. (E.). Sufficiency of Registration — Assign- ment.] — In 1874 a limited company mortgaged their property to a partnership consisting of three persons, of whom two were directors of the company. The mortgage was made for a term of seven years. It was not registered as required by s. 43 of the Companies Act, 1862. In 1876 the partner who was not a director assigned his interest in the mortgage to the other two. In 1881 it was arranged that the mortgage should be continued for another seven years. The directors having been then informed that the mortgage ought to be registered, the secre- tary entered the particulars required by s. 43 on a blank page in the company's register of trans- fers, altering the headings accordingly. The book in which the entries were made was marked on the outside " Register of Transfers." No other mortgage was ever made by the company, and the secretary deposed that no pne had ever inquired for the register of mortgages. The company being in liquidation : — Held, that there had been a sufficient registration of the mort- gage in compliance with s. 43, and that the mort- gagees were entitled to enforce their mortgage ; that debts contracted by the company during the seven years between the execution and the registration of the mortgage were not entitled to priority over the mortgage debt : — Held also, that, even if the registration was ineffectual, inasmuch as one of the original mortgagees was not a director of the company, the mortgage was not invalidated, and that it remained valid in the hands of the two directors after the assign- ment to them of the interest of the third mort- gagee. Underhanh Mills Cotton Spinning and Marmfacturing Company, In re, 31 Ch. D. 226 ; Bo L. J., Ch. 255 ; 63 L. T. 957 ; 34 W. E. 181— Pearson, J. Mortgage not created by Company— Equitable 368 Charge,] — An equitable charge over certain leasehold property had been given in 1879 to Whitehou§e by Wills. On the 18th March, 1880, Wills formed a company, of which White- house acted as the solicitor. On the 17th March, 1880, Wills agreed to sell to a trustee for the company the property in question, free from incumbrances. The purchase-money, if paid, would have been sufficient to have paid off all the then incumbrances in full. The agreement was adopted by the company, but it was unable to carry out the same, and in January, 1881, Wills agreed to waive his vendor's lien until the company should pay a certain dividend. Before it was able to do so it had been wound up. No register of mortgages had ever been kept by the company. Whitehouse claimed the property in question under his equitable charge. It was now contended by the official liquidator that White- house was an officer of the company ; that by s. 43 of the Companies Act," 1862, the equitable charge " specifically affected " property of the company, and ought to have been registered ; and that in default of registration it was void : — Held, that the words " if any property is mortgaged," in s. 43, had a future meaning, and referred to any mortgages and charges created by the company itself ; that the equitable charge in question, therefore, did not require registra- tion, and was a valid one which could be en- forced ; and that the contention of the official liquidator failed. General Hortienltural Com- pany, In re, Whitelionse's Claim, 53 L. T. 699 — Chitty, J. Transfer of Security.] — If securities, transfer- able by delivery, have been properly registered in the names of the persons to whom they were originally issued, subsequent transfers of them need not be registered ; and, semble, the same rule applies to all securities, whether transfer- able by delivery or otherwise. Debentures pay- able to bearer taken in trust for directors, held, properly registered in the names of the persons to whom they were issued. Dublin Drapery Co., In re. Cox, Ex parte, supra. 3. DEBENTURES AND DEBENTURE STOCK. a. What are — Bills of Sale Act. Description of Documents.] — A debenture may consist of one document. It is not necessary that there should be a serial issue of documents to constitute them debentures. Edmonds v. Blaina Furnaces Company, 36 Ch. D. 215 ; 56 L. J., Ch. 815 ; 57 L. T. 139 ; 35 W. E. 798— Chitty, J. Any document which either creates a debt or acknowledges it, is a "debenture." Levy v. Aiereorris Slate Company, infra. Whether Registration required.] — A memo- randum of agreement between a company of the one part and the several persons named in the schedule thereto, called the lenders, of the other part, whereby the company covenanted to pay, on a day named, to each of the lenders (nine in number) the sum advanced by him, with in- terest, and as security for the payment thereof charged therewith all its undertaking, property, estate and effects of every kind : — Held, to be a debenture in the ordinary acceptation of the 369 COMPANY — Borroiving Powers, Mortgages, and Debentures. 370 term, and within s. 17 of the Bills of Sale Act, 1882. Edmonds v. JBlaina Fnrnaoes Company, supra. A limited company issued twenty debenture honds payable to bearer, each of which con- sisted of a statement that the company would pay lOOZ. on a certain day, and that the pay- ment of the said money was secured by an indenture of mortgage made between the com- pany and certain trustees for the benefit of the debenture-holders. Neither the debenture bonds nor the covering deed were registered under the Bills of Sale Act, 1882. All the debenture bonds came into the possession of the claimant : — Held, on a sheriff's interpleader summons, that the claimant was not entitled to defeat the claim of an execution creditor to the goods of the company. JenMiuon v. Bramdley Mining Company, 19 Q. B. D. 568 ; 35 W. R. 83i— D. Sed quaere. A brick-making company deposited their title- deeds to certain beds of coal and fire-clay with their bankers, together with a memorandum which stated that the deposit was made to secure to the bankers " payment of all sums of money which we are now, or at any time here- after may be indebted to you, whether on current account for principal, interest, com- mission and charges, or on any other account whatsoever. And, in consideration of the advances now made to us, and of our account being continued, we undertake to execute, when thereunto requested, a proper mortgage, with immediate power of sale, or such further security as may be necessary for the purpose of effectually transferring to any person or persons whom you may designate for that purpose, the legal estate in the property to which this security relates." The memorandum did not contain any acknow- ledgment of any specific debt, nor any covenant or agreement by the company for payment, except so far as the same was implied in the agreement to execute a legal mortgage of the property. The company were not the owners of the surface of the land under which the beds of coal and fire-clay lay, biit they had the right to use the surface for the purpose of working the minerals, and they had erected on the surface certain trade machinery of the kind excluded by sect. 5 : — Semble, that the memorandum was not a " debenture " within the meaning of sect. 17 of the Bills of Sale Act of 1882. Edmonds v. £laina Furnaces Company (36 Ch. D. 215) observed upon. Topham v. Gfreenside Glassed Eire-Brich Company, 87 Ch. D. 281 ; 57 L. J., Ch. 583 ; 58 L. T. 274 ; 36 W. E. 464— North, J. An agreement between a company of the one part and a lender of the other part, whereby the company agreed to pay the lender the sum of 600Z. with Interest, and charged certain heredita- TQents with the repayment of the said sum of 600Z. and interest, and further agreed with the lender that they would at any time duriiig the continuance of the security at the request of the lender execute a legal mortgage, and further agreed to issue debentures of the company to the ■extent of 600Z. secured over all the capital stock, .goods, chattels, and effects of the company, including uncalled capital, both present and future :— Held, to be in effect a debenture, and within the saving of s. 17 of the Bills of Sale Act, 1882. Edm,onds v. Slaima Furnaces Com- pany (36 Ch. D. 215) followed and discussed. Levy V. Abercorris Slate Com/pony, 37 Ch. D. 260 ; 57 L. J., Oh. 202 ; 58 L. T. 218 ; 36 W. K. 411— Ohitty, J. Secured on Goods of Company — " Cover- ing Deed."] — Debentures were issued by a com- pany under its common seal with a condition annexed that the holders of debenture bonds of that issue were entitled pari passu " to the benefit of an indenture dated the 24th of No- vember, 1883, whereby — subject to a sum of I. and interest secured on mortgage — the freehold buildings and premises of the company and all the machinery, fittings, fixtures, and furniture of the company in and about the said premises, and any other machinery, fittings, fixtures and furniture that may be substituted therefor during the continuance of the security effected by the said indenture are expressed to be vested in trustees to secure the payment of all moneys payable' on such debenture bonds." The "covering deed" of November, 1883, pur- ported to be a conveyance and assignment of the hereditaments, fixtures and chattels in terms rather larger than those used in the condition ; the future chattels being not only those substi- tuted for existing chattels, but also any brought upon the premises in addition thereto. This deed was not registered under the Bills of Sale • Act, 1882. Some mouths later the directors, in consequence of the decision in JSrocklehurst V. Railway Pi:inting and Publishing Company (W. N. 1884, p. 70), caused a new debenture to be issued, which was stated to be supplemental to the original bond of the holder to whom it was given, and purported to charge, in favour of the holder, the amount due on the debenture upon ." the undertaking (of the company) and all its property, both real and personal, present and future, subject as to any part thereof to any subsisting mortgages " : — Held, 1. That, assum- ing the covering deed to be void for want of registration under the Bills of Sale Acts, the intention to give the debenture-holders a valid charge, within the meaning of the Bills of Sale Act, 1882, s. 17, on the property comprised in that deed, was manifest on the face of the debentures, read in conjunction with the an- nexed condition, and amounted to an equitable contract which would be carried into effect to give a charge upon all the property of the com- pany ; and, accordingly, that the chattels in-, tended to be charged with the money due on the original debentures were subject to an equitable charge in favour of the holders of those deben- tures : and 2. That the supplemental debentures which were issued as part of, and in order to cure a supposed defect in the original issue, did not create a charge upon any property of the company which was not comprised in the ori- ginal debentures. Ross v. Army and JVavy Hotel Company, 34 Ch. D. 43 ; 55 L. T. 472 ; 35 W. R, 40—6. A. Affirming 55 L. J.. Ch. 697 —Kay, J. b. Validity and Effect of. Charge on After-acquired Property.] — A com- pany may charge its after-acquired property, if it be sufficiently specified in the contract to charge it, and the rule is not affected by,s. 28, sub-s, 1, of the Irish Judicature Act (correspond- ing with the English Judicature Act, 1875, s. 10). Debentures issued by a joint stock company charging the undertaking, stock-in-trade, land, 371 COMPANY — Borrmoing Powers, Mortgages, and Debentures. 372 premises, and plant, and the property and effects, present and future, of the company :— Held, to charge the after-acquired stock-in-trade and other property of the company in priority to its general creditors. Diiblin Drapery Company, In re, Cox, Ex parte, ante, col. 366. Whether other Debenture-holders estopped from denying Validity.] — See Mowatt v. Cadle Steel and Iron Works Company, infra. Floating Security— Power to deal with Pro- perty — Sale.] — A company, which carried on the business of ironmasters and manufacturers, issued debentures for a total sum of .500,000Z., by which they charged their undertaliing, works, stock-in-trade, plant, moneys, and other real and personal property, both present and future, with the payment of the sums secured by the deben- tures " to the intent that the same charge shall, until default in payment of the principal or interest, to accrue due or become payable in respect of the said sum of 500,000?., or some part thereof, be a floating security upon the under- taking, works, and property of the company, not hindering sales or leases of, or other dealings with, any of the property or assets of the com- pany In the com-se of its business as a going concern." The company afterwards contracted to sell some of their land : — Held, that the pur- chaser was entitled to reasonable evidence that there had been no default in the payment of the principal or interest of the debentures. Florence Land and Public Works Company, In re (10 Ch. D. 530), and Colonial Trusts Corporation, In re (15 Ch. D. 465), distinguished. Home and Hellard, In re, 29 Ch. D. 736 ; 54 L. J., Ch. 919 ; 53 L. T. 562— Pearson, J. c. Priorities. Debenture Stock— Mortgages-Bonds,] — S. 30 of the Companies Clauses Act, 1863, saves the priority of mortgages and bonds granted before the " creation " of debenture stock. Burry Port and Owendreatli Valley Mailway, In re, 54 L. J., Ch. 710 ; 62 L. T. 842 ; 33 W. E. 741— Kay, J. A railway company, having unexhausted powers of borrowing, obtained a special act giving them further powers to borrow on mort- gage, and '• in lieu thereof " to create and issue debenture stock ; and provided for the priority of existing mortgages or bonds. The company exercised such bprrowing powers by the creation of debenture stock. Subsequently to such crea- tion the company alternately issued debenture stock and bonds. The income was insufficient to pay the interest on the debenture stock and bonds : — Held, that the special act in effect sub- stituted the time of the passing of that act for the creation of the debenture stock (the time specified in s. 24 of the Companies Clauses Act, 1863) as the period for determining in what order the stock was to rank, and also that the interest on all mortgages or bonds subsisting at the time of the passing of the special act had priority over the interest on debenture stock granted by virtue of that act, and that the inte- rest on bonds granted after the passing of that act ranked pari passu with the interest on the debenture stock. lb. The directors of a company with power to borrow, or create mortgages, or issue debentures, issued debentures purporting to charge the undertaking and the hereditaments and effects of the company with the payment of the sums mentioned in the debentures respectivply, to the intent that the debentures might rank equally as a, first charge on the undertaking, heredita- ments, and effects of the company. They after- wards, in consideration of 4,000Z. advanced and applied to the purposes of the company, deposited with the plaintiff the title-deeds of the colliery the property of the company, and by a written agreement charged the property comprised in the deeds with the payment to the plaintiff of 4,000Z. and interest :— Held, that the mortgage to the plaintiff had priority over the debentures. Wheatley v. SilJtstone and Ilaigh Moor Coal Company, 29 Ch. D. 715 ; 54 L. J., Ch. 778 ; 52 L. T. 798 ; 33 W. R. 797— North, J. Hypothecation of Freight — Debenture- holders.] — See Ward v. Royal Exchange Ship- ping Company, ante, col. 365. d. Issue. , Sealed but not Delivered — Payable to Bearer.] — The directors of a company directed their secretary to make arrangements for the issue of debentures, for payment of advances to the company. The debentures were accordingly prepared, being made payable to bearer, and sealed and stamped ; and were placed in a box, the key of which was kept by the secretary. The box was deposited in the office of the com- pany, which was also the office of T., one of the directors, who had made large advances to the company. Some of the debentures were given out by the secretary to an agent, for him to issue them to the public, which he did not succeed in doing. The company was wound up by order of the court. After the commencement of the winding-up the agent returned the deben- tures to T., who gave some of them to K. & Co., his own creditors. They took them, believing that they had been regularly issued, and that T. had power to dispose of them : — Held, that the debentures had not been issued before the com- mencement of the winding-up : — Held, also, that the other debenture-holders of the company were not estopped from disputing the validity of the debentures held by E. & Co. Whether the com- pany would have been estopped, quaere. Mowatt v. Castle Steel and Iron Works Company, 34 Ch. D. 58 ; 55 L. T. 645— G. A. Over-issue — Warranty of Authority by Direc- tors — measure of Damages.] — The plaintiff con- tracted to make a railway, and did work for which he was entitled to be paid in cash. The company not being in a position to pay, an agreement was made during the progress of the works by which the plaintiff agreed to accept debenture stock in lieu of cash. The defen- dants, who were directors of the company, thereupon issued to the plaintiff certificates for the agreed amount of debenture stock, such certificates being signed by two of the defen- dants. At that time, although the fact was not known to the defendants, all the debenture stock which the company were entitled to issue had been issued, and consequently that which the plaintiff received was an over-issue and valueless. The company subsequently went into liquidation. 873 COMPANY — Borrowing Powers, Mortgages, and Debentures. 374 but valid debenture stock retained its par value. In an action to make the defendants personally- liable for the amount of the debenture stock which should have been issued to the plaintiff under the agreement : — Held, that the defen- dants were liable on their implied representation that they had authority to issue valid debenture stock which would be a good security, and that under the circumstances the damages were the nominal amount of the stock which the plaintiff ought to have received under his agreement. Mrbanh v. JBumphreys, 18 Q. B. D. 54 ; 56 L. J., Q. B. 57 ; 56 L. T. 36 ; 35 W. K. 92— C. A. The M. Docks Company wee empowered by their special acts to issue debenture stock to a fixed amount. Between April, 1881 and 1883, various transactions took place between the secretary of the Docks Company and the London agents of the plaintiffs, in respect of advances by the plaintiffs to the company, the usual arrange- ment being that the plaintiffs should take a bill of exchange drawn upon the company by the contractors of the company, and also certificates of debenture stock, accompanied by a letter from the secretary to the effect that the certifi- cates were a collateral security. The advances were renewed from time to time, and finally consolidated by an agreement of the 20th October, 1882, made in consideration of a further advance. Some of these certificates were indorsed by 6., one of the directors of the Docks Company, to the effect that the stock represented thereby was within the statutory limit. In January, 1883, it came to the knowledge of the Docks Company that there had been an over-issue of debenture stock siuce January, 1881, and that the company was insolvent. A special act was obtained under which an arbitrator was appointed to settle the claims arising out of the conditioil of the company. Under that act, certain classes of debenture stock were authorised to be issued. Stock under one of these classes was awarded and issued to the plaintiffs in respect of their loan and interest. The stock was admitted to be worthless, and the plaintiffs brought an action for damages against the directors and the secre- tary : — Held, that the plaintiffs advanced their money on the faith of the warranty contained in the indorsements on the certificates by G., and were, therefore, entitled to damages against him. Held, also, that the measure of such damages was the difference between the values of the certificates as delivered, and those which ought to have been delivered, which in this case was the whole amount advanced by the plaintiffs. Held, further, that the issue of debenture stock by way of collateral security was not ultra vires the Companies Clauses Act, 1863, s. 22. Wkite- haven Joint Stock Banking Company v. Seed, 54 L. T. 36(V-C. A. e. Bights of Holders. Receiver — Company Parting with Whole TTudertakiiig.] — The right of the holder of a debenture which is a charge on the undertaking of a company, to enforce his security, attaches if the company parts with the whole, or substantially the whole of its undertaking and assets otherwise than in the ordinary course of business, and ceases to be a going concern. The proper remedy of the debenture-holder in such a case is by the appointment of a receiver of the property com- prised in his debenture. Hubhuch v. Halms, 56 L. J., Ch. 536 ; 56 L. T. 232 ; 35 W. R. 574— Stirling, J. Where in such a case the debenture-holder, suing on behalf of himself and the other debenture-holders, merely claimed a declaration that the transaction was void, and an injunction to restrain the person who had affected to pur- chase the undertaking and assets from dealing therewith, the court, on an interlocutoiy applica- tion for an injunction, being satisfied that under the circumstances no injustice would be thereby done, gave leave to amend by claiming a receiver and the realisation of the security of the debenture-holders. Injunction granted until the trial restraining the purchaser from dealing with the property comprised in the assignment to him otherwise than in the ordinary course of the business carried on by the company, or in the exercise of rights previously acquired by him as mortgagee. Ih. Winding-up — liquidator.] — A motion for a receiver in an action by a debenture-holder came on for hearing on the same day as a creditor's winding-up petition. The court made the winding-up order, but declined to appoint a receiver, on the ground that the appointment of a liquidator would be a sufficient protection to the debenture-holders : — Held, on appeal, that the debenture-holders were entitled to special protection, and the official liquidator was ap- pointed receiver. Wilmott v. London Celluloid Company, 52 L. T. 642— C. A. Judgment Creditors. ] — In an action by a debenture-holder on behalf of himself and the other holders of an issue of 15,000Z. debentures, the court declared that the holders of that issue were entitled to stand in the position of judg- ment creditors for 15,000?., and appointed a receiver of the property of the company subject to be seized by a judgment creditor. Sope v. Croydon and Norwood Tramways Company, 34 Ch. D. 730 ; 56 L. J., Ch. 760 ; 56 L. T. 822 ; 35 W. E. 594— North, J. Continuation of Receiver and manager after Judgment.] — Upon default being made by a company in the payment of interest on the debentures issued by it a debenture- holder commenced an action on behalf of himself and all other debeutuie-holders against the company, for the enforcement of their security, and for the appointment of a receiver and manager. A receiver and manager was duly appointed, and, on the company subsequently going into volun- tary liquidation, he was continued as liquidator. The action came on as a short cause upon motion for judgment. The minutes provided for an account to be taken of what was due under and by virtue of the plaintiff's security, and for sale ; also for the continuation of the receiver and manager until further order: — Held, that the minutes ought to contain a provision, not only for the continuation of the receiver and manager, but also for his discharge :— Held, therefore, that a direction should be inserted in the minutes that the business of the company was not to be carried on by the receiver and manager for a longer period than six months- without, the leave of the judge in chambers ; and that, if any further time should be required, an 375 COMPANY— CapitoL 376 application for further time must be made before the expiration of the six months. Day v. Syhes, 55 L. T. 763— Chitty, J. Bight of Debenture-holders to Surplus lands,] — See Hull, Barnsley and West Biding Bail- way, In re, post, Kailwat. V. CAPITAL. 1. PAYMENT OF DIVIDENDS OUT OF. liability of Directors.] — See cases, ante, cols. 360,361,362. 2. EEDUCTION OP. a. In what Cases, Besolutious passed at same Meeting to alter Articles and reduce Capital.] — A company, the regulations of which did not authorise a reduc- tion of capital, passed on the 30th of October — (1) A resolution inserting in the articles a power to reduce its capital ; and (2) a resolution for reducing the capital. Both these resolutions were confirmed at a meeting on the 16th of November : — Held, that the court could not confirm the resolution for the reduction of capital, for that a special resolution for that purpose could not be passed until after the regu- lations of the company had been altered so as to make them authorise a reduction of capital. Patent Invert Sugar Company, In re, 31 Ch. D. 166 ; 55 L. J., Ch, 924 ; 53 L. T. 698, 737; 34 W. E. 169— C. A. Resolutions for Reduction of,] — See Taylor v. Pilsen Electric Light Company, post, col. 406. Sanction of Court — General Principles.] — Semble, on an application to sanction a reduc- tion of capital the judge, though satisfied that the rights of creditors are not interfered with by the reduction, is not bound to sanction it if he sees that it would work unfairly as against any shareholders who do not consent to it. Banna- tyne v. Direct Spanish Telegraph Co., infra, — Per Cotton, L. J. The power given to the court by s. 11 of the Companies Act, 1867, to confirm a resolution to reduce capital is a discretionary power — ^that is to say, the court may exercise it either by con- firming with or without conditions, or by declining to confirm on a full consideration of all the circumstances. One matter to be taken into account is, whether the proposed scheme would work injustice between the different classes of shareholders ; if, in the opinion of the court, such would be its effect, it is not the function of the court to impose conditions amounting to an alteration of the scheme ; but the proper course to take, if such an alteration is requisite, is simply to refuse to confirm the resolution, leaving it to the company to prepare a new scheme if they should think fit. Direct Spanish Telegraph Company, In re, 34 Ch. D, 307 ; 56 L, J., Ch. 353 ; 55 L. T. 804 ; 35 W, B. 209- Kay, J. Ordinary and Preference Shareholders,] — The capital of a company consisted of ordinary shares of lOZ. each, part issued with 92. per share paid up and the remainder unissued, and of prefer- ence shares of Wl. each, all fully paid up, bearing a fixed preferential dividend of 10 per cent, per annum, the deficiency in any year to be made up out of the profits of the next or subsequent years. No dividend had been paid on the ordi- nary shares, and there were some preference dividends in arrear, they having been retained towards replacing the company's, reserve fund which had become exhausted. The company having lost part of its assets, passed a special resolution for reducing its capital by a corre- sponding amount. This they did by writing off 5Z. per share from the amount paid up on each issued share and hi. per share from the nominal amount of each unissued share ; the effect of which, it appeared, would be to place the com- pany at once in a dividend-paying condition, and set free for the preference shareholders the preference dividends which had been retained. The resolution was passed by large majorities of both classes of shareholders. Upon a petition presented by the company under the Companies Acts, 1867 and 1877, the court confimned the resolution for reduction. lb. - The articles of a submarine telegraph company, limited by shares, and formed in 1872, with a capital of 130,0002. in Wl. shares, gave power to increase the capital by the issue of new shares, with power to give preferential rights to any shares so created. It was provided that such new capital should be considered part of the original capital, and should be subject to the same provisions, except so far as the resolutions authorising the raising of it might otherwise direct. The articles also empowered the com- pany by special resolution to reduce its capital, and alter the amount and denomination of its shares. In 1874 a special resolution was passed for raising 60,000Z. by the issue of 6,000 shares of lOZ. each, which were to be paid up in full on allotment, and to be entitled to a fixed pre- ferential dividend of 102. per cent. These shares were all taken and paid up. In 1884 one of the submarine cables of the company broke down, and was lost, diminishing the assets hy about one half. The company passed a special resolution for reducing the capital to one half by reducing to one half the nominal amount of each share, ordinary or preferential. A pre- ferential shareholder brought an action on behalf of himself and the other preferential share- holders to restrain the company from acting on that resolution and from applying to the court to sanction it. Bacon, V.-C., granted an injunction, being of opinion that what was proposed to be done was a breach of the com- pany's contract with the preferential share- holders : — Held, on appeal, that the preference shareholders took their shares subject to the provisions of the articles which contained a power to the company to reduce its capital and alter the amount and denomination of its shares ; that there was no bargain with the preference shareholders that they should receive 6,0002. a year on the whole of their shares, the resolution being satisfied by their receiving 102. per cent, on the nominal amount of their shares, and that what was proposed to be done was no breach of the contract with them. Bannatyne v. Direct Spanish Telegraph Company, 34 Ch. D. 287 ; 56 L, J., Ch. 107 ; 55 L. T. 716 ; 35 W. K. 125— C. A. If what it was proposed to do had been a breach of the contract with the preference shareholders, the preference shareholders would have had a right to prevent the company from exercising in a manner inconsistent with the 377 COMPANY— Capita?. 378 contract, the powers for reduction of capital given by 30 & 31 Vict. c. 131, and 40 & 41 Vict. c. 26. lb. Per Cotton, L.J. The articles of a company provided that by a special resolution its capital might be increased by the creation of new shares which should have priority in respect of dividends if it should be deemed expedient. The original articles con- tained no power to reduce capital. In 1872 the company issued preference shares at 8 per cent., and in 1876 further preference shares at 6 per cent. ; but it was provided that the holders of all preference shares should have no power of voting. In 1885 special resolutions were passed ' giving the company power to reduce its capital. After this, special resolutions reducing the preference shares by a quarter of the nominal value were passed. The petition for confirmation of the proposed reduction was opposed by the preference shareholders on the ground that the reduction was a breach of contract, and was unfair, but the majority of the preference share- holders assented to the reduction : — Held, that the preference shareholders must be deemed to have taken their shares subject to the power given by the Companies Act, 1867, to alter the articles and reduce the capital ; that the com- pany had not contracted and could not contract that the preference shares should never be reduced ; and that, though the court had a dis- cretionary power to refuse to sanction any unfair reduction, there was no reason for refusal in the present case. Barrow Hcematite Steel Com- pany, In re, 39 Ch. D. 582 ; 58 L. J., Ch. 148 ; 59 L. T. 500 ; 37 W. R. 249— North, J. Shares issued at Discount.] — See N'ew Chile Gold Mining Company, In re, post, col. 384. Capital partly Sepaid.] — A company was incorporated on the 24th March, 1864, with a nominal capital of 600,OOOZ. divided into 30,000 • shares of 202. each. The whole of the 30,000 shares were issued, and the sum of \il. per share was paid up thereon. By special resolution duly passed and confirmed at extraordinary general meetings of the company, duly convened and held on the 20th December, 1887, and the 4th January, 1888, respectively, the company re- solved as foUows : " That in respect of each of the shares in the capital of the company, upon all of which the sum of lU. per share has been paid up, capital be paid off or returned to the extent of 3Z. per share, so as to reduce the capital paid upon all such shares to the sum of IIZ. per share upon the footing that the amount paid off or returned on each' share, or any part of it, may be called up again in the same manner as if it had never been paid." The nominal capital of the company was not altered by the proposed reduction. On petition that the reso- lution might be confirmed by the court : — Held, that the court had power to make the order. Fore Street Warehouse Company, In re, 59 L. T. 214 ; 1 Meg. 67— Kay, J. Writing off — Unpaid Calls.] — The nominal capital of a company consisted of 1,000,0002. in 20,000 shares of 50Z. each. Only 6,044 shares were issued— 1,359 as preference shares, and the remaining 4,685 as ordinary shares. All the pre- ference shares and 4,360 of the ordinary shares were fully paid up. On the remaining 325 ordinary shares only 38Z. per share had been called up, and that sum had been paid on all of these shares except 37, on which only 30Z. per shai'e had been paid. Part of their capital having been lost, the company passed a reso- lution for the reduction of its nominal amount by writing off 352. from each preference share and 882. from each ordinary share. It was pro- posed to state in the minute, which was to be registered, that on 325 of the ordinary shares (specified by their numbers) nothing was to be deemed to have been paid up, all the other issued shares being deemed to have been fully paid up. A petition was presented under the Companies Acts, 1867 and 1877, to obtain the sanction of the court to the resolution, the petition being supported by evidence that the holders of the 37 shares on which the 82. call had not been paid were persons of no means, and that it would be impossible to recover anything from them : — Held, that the order should be made as prayed, but without prejudice to any claim which might be made on the holders of the 37 shares in respect of the 82. call. Oreat Western Steam- ship Company, In re, 56 L. J., Ch. 3 ; 35 W. E. 154— North, J. Company Purchasing its own Shares.] — See Trevor v. Whitworth, post, col. 384. b. Petition for. Advertisement— Before List settled.] — A peti- tion to reduce the capital of a company, where the rights of creditors are not affected, may be advertised at once, without waiting until a list of creditors has been settled by the chief clerk. PeopWs Cafe Company, In re, 55 L. J., Ch. 312 ; 34 W. E. 229— Pearson, J. Company with Numerous Agencies.]— In the case of a petition for reduction of capital presented by a fire insurance company having numerous agencies in Ireland, the provinces, and abroad, the court directed that notice of the pre- sentation of the petition and the day fixed for hearing should be inserted not only in the London and Dwilin Gazettes, but also in news- papers circulated in each of ten other places at which the company had agencies. London and Provincial Fire Insurance Company, In re, 55 L. J., Ch. 630 ; 55 L. T. 55— Chitty, J. When dispensed with.] — On petition to confirm a resolution for reduction of capital of a company, where capital had been lost, and it had been resolved that the lost capital should be wiped off, as the resolution did not involve either the diminution of any liability in respect of unpaid capital or the payment to any shareholder of any paid-up capital, and it was not necessary to cite any creditors : — Held, that the preliminary advertisement of the petition might be dispensed with. British Land and Mortgage Company of America, In re, 53 L. T. 753— V.-C. B. In cases of petitions for the reduction of the capital of a company by writing off paid-up capital which has been lost, the court does not, as a matter of course, dispense with advertise- ment of the petition, even although it be stated that there are no creditors. F. C. Powder Co., In re, 56 L. J., Ch. 783 ; 56 L. T. 610— Chitty, J. Where a company presented a petition for the 879 COMPANY— Capitoi. 380 reduction of capital by oanceUing lost capital, and notice of the presentation of the petition had been sent to each shareholder individually, and the only creditor of the company was the company's solicitor, the court declined to dis- pense with the usual advertisement between the date of the presentation and the hearing of the petition. Municipal Trust Company, In re, 55 L. T. 632 ; 35 W. E. 120— Chitty, J. Notice of the presentation of a petition under the Companies Acts, 1867 and 1877, for the reduction of capital must, in ordinary cases, be aivertised before the hearing. Consolidated Telephone Company, In re, 54 L. J., Ch. 795 ; 52 L. T. 575 ; 33 W. E. 408— Chitty, J. Court of Appeal not interfering with Order of Court below.] — A limited company, whose shares were all fully paid up, having lost part of its capital, presented a petition to reduce the nominal capital by the amount of the loss, reducing the nominal amount of each share from 11. to 12«. &d. The court refused to hear the petition until its presentation had been adver- tised as prescribed by the 5th rule of the General Order of 1868, made under the Companies Act, 1867 : — Held, on appeal, that a petition for reduc- tion of capital authorized by the Companies Act, 1877, ought primS. facie to be advertised as di- rected by the General Order of 1868, though the judge has a discretion to dispense with adver- tisements if he is satisfied that the interests of creditors cannot be affected by what is proposed, and that as in the present case the judge in his discretion thought that the petition ought to be advertised, the Court of Appealiwould not inter- fere. Tamhracherry Estates Company, In re, 29 Ch. D. 683 ; 54 L. J., Ch. 792 ; 52 L. T. 712 — C. A. List — Chief Clerk's Certificate.] — On a petition for reduction of capital by cancelling capital which was lost, or was unrepresented by available assets, the court dispensed with the list or chief clerk's certificate of creditors, but ordered the petition to be advertised in the Form No. 8, to the schedule to the General Order of March, 1868. London and County Plate Glass Insurance Co., In re, 53 L. T. 486— Kay, J. Order made without Beference to Chambers.] — A limited company, which had issued only a small portion of its shares on which nothing had been paid, presented a petition for the confirma- tion by the court of a special resolution passed by the company reducing its capital from 1,000,000Z. to 400,000?., and for liberty to as- pense with the words " and reduced " as part of the name of the company. No prospectus had been issued. There was only one creditor of the company, and he consented to the application. The presentation of the petition had been adver- tised : — Held, that the order confirming the reduction might be made at once without any inquiry at chambers, and without any further advertisement ; and that the use of the words " and reduced " might be dispensed with on the production of an affidavit that no prospectus had been issued. West African Telegraph Company, In re, Vivian ^- Company, In re, 55 L. J., Ch. 436 ; 54 L. T. 384 ; 34 W. E. 411— Pearson, J. "And reduced" dispensed with.] — Pending the hearing of a petition about to be presented to obtain the sanction of the court to a resolution for the reduction of capital, the court gave the company permission to dispense with the words " and reduced." Miner Plate Fresh Meat Com- pany, In re, 52 L. T. 39 ; 33 W. E. 319— V.-C. B., and see preceding case. Where a company presented a petition for the reduction of capital by cancelling lost capital, and notice of the presentation of the petition had been sent to each shareholder individually, and the only creditor of the company was the company's solicitor, the court declined to dis- pense with the use of the words " and reduced." Municipal Trust Company,, In re, 55 L. T, 632 ; 35 W. E. 120— Chitty, J. Abandonment of Eesolntion.] — Where a special resolution for reduction of capital has been abandoned before its confirmation by the court, the court will give leave to discontinue forthwith the use of the words " and reduced " as part of the company's name. Mordey ^ Co., In re, 53 L. T. 736— C. A. Form of Minute.] — On the 20th February, 1888, a petition was presented by a company asking the court to confirm a special resolution passed on the 25th November, 1887, and con- firmed on the 16tb December, for the reduction of capital. On the 21st February, 1888, on motion, Kay, J., being satisfied that the reduc- tion of capital proposed did not involve any di'minution of liability in respect of unpaid capital, or the payment to any shareholders of any paid-up capital, and the creditors, therefore, not being entitled to object, made this order ; " Let the petition be in the paper for hearing on Saturday week, without any advertisement of the notice, and without any certificate as to creditors." On the hearing of the petition: — Held, that the minute proposed to be registered should have on the face of it the amount of the original, as well as of the reduced capital. Order : " The court, not requiring notice of the day appointed for hearing, confirm the special resolution. Liberty to discontinue the words ' and reduced ' forthwith, and approve of the minute in the copy petition. Advertise as required by the act, in the London Gazette, the Times, and principal Whitehaven paper." Tfesi Civmlerland Iron and Steel Company, In re, 58 L. T. 152— Kay, J. VI. SHARES AND STOCK. 1. SALE ON STOCK EXCHANGE. Befusal of Company to register Transfer- Action to recover Price.] — A contract for the sale of shares in a registered company was made through brokers upon and subject to the rules of the Stock Exchange. In accordance with the practice of the Stock Exchange, the transferee of the shares paid the price of them to the vendor upon delivery to him of a duly executed transfer. An application for registration of the transfer being subsequently made to the directors of the company, who were empowered by the articles of association in their discretion to decline to register a person claiming by transfer of shares, they refused to register the transferee as a member of the company. The transferee thereupon brought an action to recover back the price of the shares from the vendor as 881 COMPANY— S/iares and Stock. 382 money had and received to liis use : — Held, following Stray v. Bussell (1 E. & E. 888, 917), that the contract for the sale of shares on the Stock Exchange did not import an undertaking by the vendor that the company would register the transferee, and that the action was not maintainable. London Founders Association v. Clarhe, 20 Q. B. D. 576 ; 57 L. J., Q. B. 291 ; 59 L. T. 93 ; 36 W. R. 489— C. A. Bights and Liahilities of Broker.] — See Frik- ciPAL AND Agent. 2. APPLICATION AND ALLOTMENT. Exchange of Shares — Executors — Personal liahility.] — Upon the amalgamation in 1882 between the S. and C. banking companies. A., a holder of 100 shares in the S. Bank, received a circular asking whether he would exchange his shares in the S. Bank for shares in the C. Bank, which took over the business of the oth&. A. died shortly afterwards without having sent any reply to the circular. On the 27th of February, 1883, a letter was sent on behalf of A.'s executors to the C. Bank, " enclosing certificate for 100 shares of the S. Bank in the name of " A., " and will thank you to let us have shares in your bank in exchange." On the 28th of February, the manager replied that when probate had been exhibited to the London agents of the bank he would send share certificates in the bank " in the name of the executors individually." A certificate was made out to the executors of 100 shares in the 0. Bank, and an entry made in the share register with the description " executors of A." The executors wrote that they objected to have the certificate in their names, and requested the bank to forward them one in the name of A. The directors accordingly ordered the certificate to be cancelled, and one made out in the name of A. for 100 shares. On summons by the liquidator for rectification of the register by striking out the name of A., and putting in place of it the names of the executors as holders of the 100 shares : — ^Held, that the letters of the 27th and 28th of February constituted by application and acceptance a completed contract between, the executors and the bank that 100 shares should be taken in the names of the executors individu- ally, and further, that such completed contract was not, and could not have been, afterwards rescinded by the company, and that therefore the register must be rectified. Cheshire BanJt- ing Com/pany, In re, Bufs Execvtors^ case, 32 Ch. D. 301 ; 54 L. T. 558— C. A. Application by Agent — Measure of Damages.] — P. authorized his agents to apply for shares in company A., but by mistake they applied for shares in company B., the names of the two companies being very similar. The shares were duly allotted to P. Within a few days the mis- take was discovered, but company B. refused to cancel the allotment, and a few months after- wards was ordered to be wound up. P. having succeeded in removing his name from the list of contributories, on the ground that he had never authorized his agents to apply for shares in com- pany B., the liquidator claimed damages from the agents for their breach of warranty. It was admitted that P. could have paid ^r the shares at the time they were applied for : — Held, that the measure of damages was the full nominal value of the shares, as that would have been what they would have obtained from P. as a solvent contributory. National Coffee Palace Company, In re, Panmwe, Ex parte, 24 Ch. D. 367 ; 53 L. J., Ch. 57 ; 50 L. T. 38 ; 32 W. II. 236 — C. A. Allotment — Directors — Quorum — Improperly constituted Board.] — R. applied for and was allotted shares in a company, the prospectus of which stated that there were three directors, of whom F. was one. The articles of associa- tion of the company provided that the number of directors should not be less than three, nor more than seven ; and three names (including that of F.) were given as the first directors. It was also provided that two directors should form a quorum. The company having been subsequently ordered to be wound up, E.'s name was placed on the list of contributories. It came to E.'s knowledge that F. never authorised his name to be used as a director of the company, nor ever acted in that capacity. Accordingly K. objected that there had been no duly con- stituted board of directors ; that two directors could not consider themselves a quorum ; and that no acts by them were valid. He there- fore claimed that the allotment to him of shares was void ; and that he was entitled to have his name removed from the list of contributories, and the money paid by him refunded : — Held, that the want of a properly constituted board of directors when the shares were allotted to R. rendered the allotment invalid ; and that the defect was not cured by the provision of the company's articles of association that two directors might form a quorum. Held, there- fore, that E.'s name must be struck ofi the list of contributories. British Empire Match Com- pany, In re, Ross, Ex parte, 59 L. T. 291 — Kay, J. Application was invited by a company for 106,000 preference shares. At a meeting of all the directors, five in number, it was resolved not to allot till 14,000 shares were applied for ; at a meeting of two (a quorum of) directors held shortly afterwards it was resolved that the previous resolution was cancelled, and that the shares then applied for,' about 3,000, should be allotted. The meeting was held at two o'clock, on a few hours' notice to two of the directors who did not attend, of whom one did not receive his notice till the next day, and the other gave notice he could not attend till three ; the fifth director was abroad and no notice was sent to him : — Held, that the allotments made under the later resolution were void against the allot- tees. Homer District Consolidated Gold Mines, In re. Smith, Ex parte, 39 Ch. D. 546 ; 58 L. J., Ch. 134 ; 60 L. T. 97— North, J. See also post, XI., 15, d. 3. ISSUE. Preference Shares — Memorandum of Associa- tion — Articles of Association.] — A company, with power by its memorandum of association to increase the capital, thereby stated to be " 10,000?. divided into 1,000 shares of lOZ. each," and with power by the contemporaneous articles of association " by special resolution from time to time to increase the capital of the company by the creation of new shares of such an amount as the company may by such special 383 COMPANY— Scares and Stock. 384 resolution determine, and any such new shares may be issued either with or without special privileges and priorities over the original shares," — having gone into liquidation, a scheme for the reconstruction of the company was proposed with the sanction of the liquidator ; and special resolutions were passed and confirmed for an in- crease of capital by the creation of new shares to be called preference shares, giving to the holders the right to a preferential dividend of 5 per cent. : — Held, that the proposed scheme was not ultra vires, and might be sanctioned by the court. Harrison, y. Mexican Railway Com- pany (19 L. K., Eq. 358) followed ; Hutton v. Scarhorowgli Cliff Sotel Company (2 Dr. & Sm. 514) ; Guirmess v. Land Corporation of Ireland (22 Ch. D. 349) ; and Ashbury v. Watson (30 Ch. D. 376), distinguished. So-uth Durham Brewery Company, In re, 31 Ch. D. 261 ; 55 L. J., (Jh. 179 ; 53 L. T. 928 ; 34 W. E. 126— C. A. The memorandum of association of a company provided that the capital of the company should consist of 500 1,OOOZ. shares. Article 4 of the articles of association gave power to create additional share capital, which might be issued as preference shares. By special resolution under a power -in the articles it was resolved that the 500 1,000Z. shares should be divided into 50,000 Wl. shares, and that the capital should be increased by the creation of 80,000 new IQl. shares. The company by special resolution repealed the original articles and substituted others, one of which was to the same effect as the original article 4. When 100,000 \0l. ordinary shares had been issued, the com- pany resolved that the balance of the unissued capital, namely, 300,000^., should be issued as 30,000 new lOZ. shares with a, preferential divi- dend : — Held, that the issue of such preferential shares by the directors was intra vires. Bridg- water Navigation Company, In re, 39 Ch. D. 1 ; 57 L. J.. Ch. 809 ; 58 L. T. 476 ; 36 W. R. 769— North, j. Issue of Shares at a Discount.] — A company limited by shares under the act of 1862 has no power to issue shares at a discount so as to i-ender the shareholder liable for a smaller sum than that fixed for the value of the shares by the memorandum of association ; and such issue will be invalid although the contract with the shareholder under which the shares were issued has been registered under s. 25 of the Companies Act, 1867. Plashynaston Tube Company, In re (23 Ch. D. 542), and Ince Hall Rolling Mills Company, In re (23 Ch. D. 505, n.), overruled. Almada and 'firito Company, In re, Allen's case, 38 Ch. D. 415 ; 57 L. J., Ch. 706 ; 59 L. T. 159 ; 36 W. E. 593 ; 1 Meg. 28— C. A. S. P. London Celluloid Company, In re, 39 Ch. D. 190— Kay, J. The liquidator of a company in voluntary liquidation entered into an agreement, under s. 161 of the Companies Act, 1862, for the sale of its property to a new company, part of the consideration being the issue to each shareholder of the old company of one share of 11. in the new company, with 15.s. credited as paid up thereon, in exchange for each fully paid-up share of IZ. in the old company held by such shareholder, and that the remaining 5«. per share should be payable by the allottee at the times mentioned in the agreement. The whole of the shares in the new company, 500,000 in number, were issued to the shareholders in the old company in the manner mentioned in the agreement. Prior to their issue a contract pro- viding for their being issued in that way was filed with the registrar of joint-stock companies, under s. ,25 of the Companies Act, 1867. The company afterwards increased its capital by the creation of 500,000 more shares of \l. each, of which 50,000 were issued as fully paid up as the consideration for the purchase of other property by the company, and 240,000 were issued at a discount of 15«. per share, a contract being in each case filed, prior to the issue, with the regis- trar of joint-stock companies. After this had been done the company passed a special resolu- tion for the reduction of the capital by can- celling paid-up capital to the extent of 15«. per share, as having been lost or being unrepre- sented by available assets. The company peti- tioned for the confirmation of the resolution by the court. There was no evidence of any loss of capital otherwise than by reason of the issue of the shares at a discount : — Held, that the issue of the shares at a discount was illegal, and that the shareholders were still liable to the extent of 15«. per share, and therefore, that the pro- posed reduction of capital could not be con- firmed by the court. New Cliile Gold Mining Company, In re, 38 Ch. D. 475 ; 57 L. J., Ch. 1042 ; 59 L. T. 506 ; 36 W. E. 909— North, J. 4. PROVISIONS. IN ARTICLES OF ASSO- CIATION. Power to Issue Preference Shares.] — See Cases, supra. Power of Company to Purchase its own Shares.] — A limited company was incorporated j under the Joint Stock Companies Acts with the objects (as stated in its memorandum) of acquir- } ing and carrying on a manufacturing business, and any other businesses and transactions which the company might consider to be in any way conducive or auxiliary thereto or in any way connected therewith. The articles authorised the company to purchase its own shares. The company having gone into liquidation a former shareholder made a claim against the company for the balance of the price of his shares sold by him to the company before the liquidation and not wholly paid for : — Held, that such a com- pany has no power under the Companies Acts to purchase its own shares, that the purchase was therefore ultra vires, and that the claim must fail. The reasoning of the Court of Appeal in Bronjield SilJtstone Coal Company, In re (17 Ch. D, 76), disapproved. Trevor v. Whitwortk, 12 App. Cas. 409 ; 57 L. J., Ch. 28 ; 57 L. T. 457 ; 36 W. R. 145— H. L. (B.). Lien of Company on Shares — Deposit Of Certi- ficate of Shares— Notice of Trust,]— The ar- ticles of association of a company registered under the Companies Act, 1862, provided that the company should have " a first and per-^ manent lien and charge, available at law and in equity, upon every share for all debts due from the holder thereof." A shareholder deposited his share certificates with a bank as security for the balance due and to become due on his current account, and the bank gave the company J 385 COMPANY— S/tares and Stock. 886 notice of the deposit. Tlie certificates stated that the shares were held subject to the articles of association : — Held, that the company could not in respect of moneys which became due from the shareholder to the company after notice of the deposit with the bank claim priority over advances by the bank made after such notice, but that 'the principle of Hophinson v. Rolt (9 H. L. C. 514) applied, and also, that the notice to the company of the deposit with the bank was not a notice of a trust within the meaning of the Companies Act, 1862 (25 & 26 Vict. c. 89), s. 30, and the bank by giving notice of the de- posit did not seek to affect the company with notice of a trust, but only to affect the company in their capacity as traders with notice of the interest of the bank. Bradford Banking Com- pany T. Briggg, 12 App. Gas. 29 ; 56 L. J., Gh. 364 ; 56 L. T. 62 ; 35 W. E. 521— H. L. (E.). The articles of association of a limited com- pany provided that the company should have " a first and paramount lien " upon the shares of every member for his debts, liabilities, and en- gagements to the company. A shareholder made an equitable mortgage of his shares in favour of the plaintiff as security for an advance, and the plaintiff gave the company notice of his charge. After the date of the notice the shareholder gave a written guarantee to the company : — Held, in accordance vrith Bradford Banking Company v. Brings (31 Ch. D. 19, in C. A. reversed in H. L.), that, supposing the guarantee to have been given for valuable consideration, the company were by virtue of their articles entitled to priority for their claims over the charge in favour of the plaintiff. Mile^ v. 2few Zealand Alford Estate Company, 32 Ch. D. 266 ; 55 L. J., Ch. 801 ; 54 L. T. 582 ; 34 W. R. 669— G. A. Surrender to Company of Shares held by Servants.] — The articles of association of a company provided that all employes of the com- pany other than the managing directors should, on the termination of their service, surrender their shares to the company. The company was now being wound up, and a cashier who was discharged in 1882 applied for the removal of his name from the list of contributories, and for repayment to him of the value as in 1882 of his shares, and for indemnity against subsequent calls : — Held, that no such - relief could be granted. Walker and Saeking, In re, 57 L. T. 763— Stirling, J. Provisions against Alienation by Officer.] — A provision in articles of association that fully paid-up shares issued to an officer of the company should be retained by him and not dealt with by him for a period of seven years : — Held, to be a provision for the protection of the company, and not to entitle a shareholder to invalidate a call made at a meeting of directors, at which a transferee of such shares was necessarily present to form a quorum, such transfer having been made by the consent of the company within the seven years. London and Westminster Supply Association v. Griffiths, 1 C. & E. 15 — Stephen, J. 5. TRANSFER. Delivery of Transfer Deed to Secretary.] — Under the provisions of the Companies Clauses Consolidation Act, 1845, a deed of tratisfer of shares or stock does not pass the legal interest to the transferee until it has been delivered to the secretary of the company. If he returns it because, it does not comply with the requisitions of the act it is to be considered as not delivered to him. Nanney v. Morgan, 37 Ch. D. 346 ; 57 L. J., Ch. 311 ; 58 L. T. 238 ; 36 W. R. 677— G. A. Trustees who held railway stock, in trust for H. B. absolutely, executed a deed of transfer to him, and delivered it to the secretary of the company, who returned it because it was not properly stamped and dated. After this H. B. made a voluntary settlement purporting to in- clude this stock. Several years afterwards the defects in the deed of transfer were supplied, and it was delivered to the secretary, who re- ceived it and registered the stock in H. B.'s name : — Held, that at the time of the execiitiou of the voluntary settlement the stock was not legally vested in H. B., but that he was only equitable owner. That the voluntary settleiuent of it therefore was effectual, and that H. B.'s representative was bound to transfer the stock to the trustees of the voluntary settlement. Ih. Non-registration — Inchoate Legal Title — Pre- existing Equitable Title.] — The deed of settle- ment under which a company was formed pro- vided (as) that no person claiming to be the pro- prietor of any share by transfer should be treated as such unless and until he should have been registered in the register of shareholders as the proprietor of such share : (J) that no person should be entitled to be registered as the pro- prietor of any share unless and until by execu- tion of the deed of settlement, or some deed referring thereto, he should have undertaken all the obligations of the shareholder ; and (o) that every transfer should be effected by deed which, when executed, should be deposited or left at the office of the company. The plaintiff, a married woman, living apart from her hus- band, purchased shares in the company with moneys forming part of her separate estate, and such shares were transferred to and registered in the name of W., who held them as trustee for her for her separate use. W., being indebted to the defeudante, as a security for his debt, de- posited with them the certificates, and executed to them a transfer of the shares. The deed of transfer did not refer to the deed of settlement, and the defendants sent it (along with the certi- ficates) to the office of the company, for registra- tion ; but did not execute or offer to execute the deed of settlement. The company having received notice that the plaintiff claimed the beneficial ownership of the shares, did not pro- ceed to register the transfer. In an action by the plaintiff to establish her title to the shares : — Held, that the defendants had neither a com- plete legal title to the shares, nor as between themselves and the company an unconditional right to be registered as shareholders in the place of W., and that their title being inchoate only was insufficient to defeat the pre-existing equitable title of the plaintiff. Dodds v. Bills (2 H. & M. 424), observed upon and distinguished. Roots V. WilUamson,?.^ Ch. D. 485; 57 L. J., Ch. 995 ; 58 L. T. 802; 36 W. K. 758- Stir- ling, J. Approval, of Board— Proof.]— Where a com- pany's articles of association provided that " no 387 COM.VANY— Shares and Stock. 388 share shall be transferred without the approval of the board," it is not necessary to show a direct, approval by the board, but such approval may be inferred from the way the shares have been dealt with in the company's books. Branlisea Island CoTwpany, In re, Bentinok, Ex parte, 1 Meg. 23—0. A. See, also, post, XI. 15, e. Shareholder indebted to Company — Liquida- tion of Shareholder — Befusal of Company to register Trustee.] — By the articles of association of a company it was provided that the directors might refuse to register a transfer of shares while the shareholder making the same was indebted to the company, or if they should consider the transferee an irresponsible person. It was also provided that persons becoming entitled to shares in consequence of the death, insolvency, or bankruptcy of a shareholder might be registered on the production of such evidence as might .from time to time be required by the directors, and that any transfer or pretended transfer of shares not being approved by the directors should be absolutely void. A holder of shares in the company executed transfers of such shares to the nominees of a bank as a security for advances. The company refused to register these transfers, on the ground that the transferor was indebted to the company. Sub- sequently, the transferor having filed a liquida- tion petition, a trustee in liquidation was duly appointed. Such trustee, with the consent of the bank and their nominees, applied to the directors of the company to be registered as the ovnier of the shares, but they refused the application. The bank, though consenting to the trustee's registration, had never waived their security : — Held, that the declining to register the transfers by the directors was not a disapproval of them so as to render them void within the meaning of the articles, that the trustee was not entitled to the shares vrithin the meaning of the articles so long as the trans- fers remained in force, and that the trustee was not entitled to be registered, notwithstanding the consent of the transferees. Harrison, Ex parte, Cannocli and Rugeley Colliery Company, In re, 28 Oh. D. 363; 54 L. J., Ch. 554; 53 L. T. 189— C. A. Blank Transfer— Eights of Holder.]—]?., the registered holder of shares in a company, deposited the certificates with C. as security for 150/., and gave him a transfer signed by F., with the consideration, the date, and the name of the transferee left in blank. C. deposited the certificates and the blank transfer with Q. as security for 250Z. C. died insolvent, after which Q. filled in his own name as transferee, and sent in the transfer for registration. The shares were accordingly registered in Q.'s name, but whether this was done before notice given by P. to the company and to Q. that F. denied the validity of the transfer, was doubtful on the evidence ; — Held, that Q. had no title against F. except to the extent of what was due from F. to 0. France v. Clarh, 26 Ch. D. 257 ; 53 L. J., Ch. 585 ; 50 L. T. 1 ; 32 W. K. 466— G. A. A person who without inquiry takes from another an instrument signed in blank by a third party, and fills up the blanks, cannot, even in the case of a negotiable instrument, claim the benefit of being a purchaser for value without notice, so as to acquire a greater right than the person from whom he himself received the instrument. If a debtor delivers to his creditor a blank transfer by way of security, that does not enable the creditor to delegate to another person authority to fill it up for purposes foreign to the original contract. Sargent, Ex parte (17 L. K., Eq. 273), observed upon. ZJ. Want of Seal — Evidence of Sealing and Delivery.] — A. deposited with B., his stock- broker, the certificates of shares in the Balkis Consolidated Company, and executed a blank transfer to secure the balance of his current account. The articles of the company required that transfers of shares should be made by deed. Shortly afterwards B. filled up the blank transfer with the name of L. as transferee, and deposited the shares with L. as security for money borrowed, as he alleged, in pursuance of the general direc- tions of A. Later on B. closed A.'s account and sold the shares. L., who was willing that the purchase should be completed, applied to the company to register the transfer to himself. la the meanwhile A., who had disputed B.'s account, had given the company notice not to register. L. now moved, under the Companies Act, 1862, s. 65, to rectify the register by in- serting his name. On production of the transfer, it appeared that it contained no seal or wafer in the place of a seal, but only a mark on the paper of the place where the seal ought to he. The transfer was witnessed by B.'g clerk as having been signed, sealed, and delivered by A., but the attesting witness did not make any affidavit, and the evidence of A. and B. as to whether A. put his finger on the seal or not was contradictory : — Held, that no order could be made on the motion ; that L. could have no right to be registered unless A. were estopped from denying that the transfer to L. was good, and this estoppel could only arise if the document delivered to L. were prima facie complete ; that it was not complete in the absence of a seal unless it was shown that it had been sealed, and for this the evidence was insufficient. BaXhis Consolidated Company, In re, 58 L. T. 300; 36 W. E. 392--North, j. Transfer of Stock into Joist Names — Besult- ing Trust — Intention to Benefit.] — The plaintiff, a widow, in the year of 1880, caused 6,000/. Consols to be tranrferred into the joint names of herself and the defendant, who was her godson. She did so with the express intention that the defendant, in the event of his surviving her, should have the Consols for his own benefit, but that she should have the dividends during her life ; and she had previously been warned that if she made the transfer she could not revoke it. The first notice the defendant had of the trans- action was a letter from the plaintiff's solicitors about the end of 1882, claiming to have the fund re-transferred to the plaintiff : — Held, that the legal title of the defendant as a joint tenant of the stock was complete, although he had not assented to the transfer until he was requested to join in re-transferring the stock, for that the legal title of a transferee of stock is complete without acceptance. A transfer of property to a person without his knowledge, if made in proper form, vests the property in him at once, subject to his right to repudiate it when informed of the transfer. Standing v. Bowring., 31 Ch.D. 389 COMPANY— /Scares and Stock. 390 282 ; 55 L. J., Gh. 218 ; 51 L. T. 191 ; 34 W. E. 204— C. A. Held, further, that the plaintiff could not claim a re-transfer on equitable grounds, the evidence clearly showing that she did not, when she made the transfer, intend to make the defen- dant a mere trustee for her except as to the dividends. lb. Forged Transfer hy one Executor — Bight of other to sue.] — One of two executors, at various periods, some of which were more than six years before the commencement of the action, forged his co-executor's signature to transfers of stock, which were duly registered. He applied the proceeds of the transfers to his own purposes, but continued to pay the amounts of the divi- dends to the persons entitled. The other executor, on discovery of the fraud, informed the railway company that the transfers were invalid, and demanded that the stock should be registered in the names of herself and another who had been appointed trustees of the will. The railway company declined to accede to this request, and the present action was brought that the company might be ordered to register the plaintiffs as owners of the stock : — Held, that one of the co- executors could not transfer stock registered in the names of both ; that the transfers were not good as to one moiety of the stock, and that the innocent executor had in equity a sufficient interest in the stock to enable her to sue her fraudulent co-executor and the railway company. Barton v. North StaffordsJUre Railway, 38 Oh. D. 458; 57 L. J., Ch. 800 ; 58 L. T. 549 ; 36 W. E. 754— Kay, J. Estoppel — ITegligence — Custody of Seal — Troximate Cause of Loss.] — The plaintiffs, a corporate body, left their seal in the custody of ■their clerk, who, without authority, affixed it to powers of attorney, under which certain stock in the public funds, the property of the plaintiffs, was sold. The clerk appropriated the proceeds. In an action in which the plaintiffs claimed that they were entitled to the stock on the ground that it had been transferred without their authority by the defendants : — Held, on the authority of Bank of Ireland v. Evans' Trustees r(5 H. L. C. 389), that assuming the plaintiffs had been negligent their negligence was not the proximate cause of the loss, and did not dis- ■entitle them from recovering in the action. Merchants of the Staple v. Bank of England, 21 Q. B. D. 160 ; 57 L. J., Q. B. 418 ; 36 W. E. 880 ; 52 J. P. 580— C. A. «. EEGISTEATION OF CONTEACT UNDEE S. 25 OF COMPANIES ACT, 1867.— See post, col. 446, et seq. 7. EEGISTEATION OF SHAEES. mandamus to Company.] — ^A prerogative writ ■of mandamus vrill not lie to compel a company to register as a holder of shares therein, a person to whom they have issued certificates in respect •of such shares where the company have issued prior certificates in respect of such shares to someone else, without clear proof that the person to whom the last certificates were issued has a better title than the person to whom the earlier ones were issued, even though the peison holding the earlier certificates has not been entered in the company's register as the holder of such shares. When such a writ is asked for, the company are not estopped from relying upon the actual facts. Reg. v. Charnwood Forest Railway, 1 C. & E. 419 — Denman, J. Affirmed in C. A. Action against Company for Befusal to Begis- ter — Damages. ] — The plaintiff transferred shares of his in a registered company to A. B. on an agreement between them that if A. B. was accepted as shareholder by the company the shares should be taken by him at their market value in reduction of a debt due to him from the plaintiff. The consideration was stated in the transfer to be only the sum of 5s., and the transfer was brought to the company for registration without any notice of the said agreement between the plaintiff and A. B. The company refused to register on the ground that the plaintiff was indebted to them, but on its being established after an interval of eighteen months that the plaintiff was not so indebted, the company registered the transfer. In an action against the company for wrongfully refusing to register, the plaintiff sought to recover as damages the loss in the market value of the shares between the time when the trans- fer was brought to the company to be registered and the time when it was in fact registered : — Held, that the plaintiff was entitled to recover only nominal damages, as the contract between the plaintiff and A. B. was a special one, of which the company had had no notice, and the ordinary contract on the sale of registered shares was only that the seller should give to the purchaser a valid transfer, and do all required to enable the purchaser to be registered as member in respect of such shares ; the duty of the purchaser, which has not been altered by s. 26 of the Companies Act, 1867, being to get himself registered as such member. Skinner v. Oity of London Marine Insurance Corporation, 14 Q. B. D. 882 ; 54 L. J., Q. B. 437 ; 53 L. T. 191 ; 33 W. E. 628— C. A. List of Members — Inspection of Begister.] — See ante, I., 3, b. and c. Bectifying Begister — Jurisdiction.]— On the 4th May, 1887, A. deposited with B'., his broker, certain shares in the K. company, registered under the Companies Act, 1862, and signed a/ blank transfer. B. signed a receipt stating that the shares were deposited to secure the balance of A.'s account, and that he would not realise them without A.'s sanction. On the 23rd July, A. wrote authorising a sale of the K. shares at a given price. On the 5th of August, A. wrote to B. that the shares in his hands would be sold by another broker, but at the same time directed him to sell certain shares other than the K. shares. On the 27th August B. sold the _K. shares on the Stock Exchange to W., at a price above the limit fixed by A. on the 23rd July. B. filled in the transfer with W.'s name, and W. sent the transfer to the company's office for registration. The company, having been warned by A. not to register the transfer, refused regis- tration. W. moved under s. 25 of the Companies Act, 1862, to have the register reotifed by enter- o 2 391 COMPANY— S/iores and Stock. 392 ing his name as a member in the place of A. : — Held, (1) on the construction of the correspond- ence between the parties, that B. was an equit- able mortgagee, with a power of sale not to be exercised without A.'s sanction, but that that Banotlon had been given and not withdrawn ; (2) that in that state of facts the court had jurisdiction to decide the question of title be- tween A. and the purchaser from B. upon motion to rectify the register under s. 35, and that W.'s name must be put on the register. Kimierley North BlocTi Diamond Mining CompaTiAi, In re, Wemher, Ex parte, 59 L. T. 579— C. A. Lapse of Time — Paid-up Shares.] — The members of a firm sold their assets to a com- pany formed for the purpose under a verbal contract. All the shares in the' company were issued to the partners or their nominees. The shares were issued as paid up to the extent of the purchase-money. After the lapse of fourteen years the court, on being satisfied that all debts were provided for, rectified the register of mem- bers, by strilsing out the names of all the share- holders ; and directing the issue of new shares, after a proper agreement had been executed and filed under the Companies Act, 1867, s. 25. Z)ar- Ungton Forge Company, In re, 34 Ch. D. 522 ; 56 L. J., Oh. 730 ; 56 L. T. 627 ; 35 W. E. 537— North, J. Contract to take Shares — Cancellation of Shares — Bescission of Contract.] — W., T. and P. applied for shares in a limited company established for the purpose of purchasing and working a concession from a foreign Govern- ment. T. and P. were directors of the company. The directors sent letters of allotment to the applicants, in which they called on them to pay the allotment money by a certain day. But their names were never entered on the register, nor was any allotment money paid nor certificates of shares issued. Three years afterwards the directors made afresh arrangement with the owners of the concession, under which they purported to cancel the old allotments and to allot all the shares, except a few resenred for the directors and other persons, to the vendor of the concession and his nomi- nees. The shares were accordingly entered in the register in their names. Soon afterwards the company was ordered to be wound up, and the liquidator applied to the court to rectify the register by placing on it the names of W., T. and P. for the number of shares allotted to them, and to diminish the number of shares for which the vendor of the concession was entered on the register to a like amount : — Held, that whether the effect of the application and allotment was that W., T. and P. became actual members of the company in respect of the shares allotted to them or only agreed to become such members, it was now too late, under the circumstances which had occurred, for the company to insist on placing their names on the register. Held, also, that the fact that T. and P. were directors whose duty it was to place the allottees on the register did not affect the question. Floreiiee Land and Public Works Company, In re. Mool's case, Tufnell ^ Ponsonby's case, 29 Ch. D. 421 ; 52 L. T. 933— C. A. Entry, Condition Precedent to Membership.] — But, semble, according to the true construction of the 23rd section of the Companies Act. 1862, they did not become members in respect of the allotted shares, the entry on the register being a condition precedent to such member- ship. 11. Summons to Bemove Names from List of Coutributories — Attendance and Appearance of Parties — Costs.] — Where summonses were taken out by A. and B. to have their names re- spectively removed from the list of contributories of a company, counsel appeared for creditors in A.'s case and asked for costs : — Held, that only one set of costs could be allowed — namely, the liquidator's. In B.'s case, counsel for creditors, though admitting that he must ap- pear at his own expense, contended that under rule 60 of the General Order, 1862, he was en- titled to be heard : — Held, that the judge had a discretion. His lordship, in the exercise of that discretion, declined to hear anyone in opposition to the summons except the liquidator. Anglo- Indian Industrial Institution, In re, Montagu's case; Grey's case, 59 L. T. 208 — Kay, J. Affirmed, 86 L. T. Joum. 6 ; 83 S. J. 11. 8. CALLS. Board of Directors — ITinimnm Number — For- feiture of Shares for Non-payment — Estoppel — Call when "Owing" — Interest on Calls.] — By the articles of association of the plaintiff limited company (in liquidation), it was pro- vided that the board of directors should con- sist of not less than three nor more than seven directors. Calls were to be made by the board of directors. If any casual vacancy occurred in the office of directors, it might be filled up by the board of directors. Any member whose shares had been declared forfeited was notwith- standing to be liable to pay all calls owing upon such shares at the time of the forfeiture, and the interest (if any) thereon. If any member did not pay the amount of any call for which he was liable, it was provided that he should pay interest for the same from the day appointed for the payment thereof to the time of actual pay- ment, at the rate of 10 per cent, per annum. The defendant was a, director of the plaintiff company, and a shareholder in it to a large extent. At a meeting of directors held on the 7th November, 1882, a call of 11. per share was made payable on the 6th December. Before the 19th December, 1882, by the resignation of some of the directors, their number was reduced to two, of whom the defendant was one. At a meeting held on the 19th December, 1882, these two, the defendant being in the chair, elected three other directors, and the board thus consti- tuted passed a resolution that notice be sent the shareholders who had not paid the call, that, in default of its payment by the 30th December, their shares would be liable to forfeiture. They also made a second call of 11. per share, payable on the 20th January, 1883. At a meeting of the same directors held on the 3rd January, 1883, the defendant in the chair, it was resolved that the shares on which the first call had not been paid should be forfeited. Amongst the names of the shareholders in arrear that of the defen- ant was included. Upon an action to recover the amount of the said two calls and interest upon them from the day on which they respec- tively became payable, at the rate of 10 per 398 COMFAJ^Y— Shares and Stock. 394 cent, per annum, till payment or judgment : — Held, that the two directors who were alone in office at the commencement of the meeting held on the 12th Decemter, 1882, not being sufficient in number to form a properly constituted board, although sufficient to form a quorum of a properly constituted board, had no power to act BO as to increase the number of directors, or to make a call, as between the company and the ordinary shareholders. But held, that, as the defendant was a ditector, in the chair, and assisted in passing the resolutions for the second call and for the forfeiture of the shares on the non-payment of the iirst call, the defendant was «stopped from disputing the validity of such resolutions, and was liable to pay the amount of the calls. Hence, also, that, the second call was ■" owing " immediately after it was made, and therefore the defendant was liable to pay it, although in fact his shares had been forfeited before the day appointed for the payment of such second call. Held, also, that the defendant was liable to pay interest at the rate of 10 per cent, per annum upon the first call from the day upon which it became payable up to the date of forfeiture (the 3rd January, 1883), but that he was not liable, to pay any interest on the second call, because his shares had been forfeited before the day for payment of such second call had arrived. Fame Electric Accwniulator Company v. PMlUpart, 58 L. T. 525 — Hawkins, J. Action for — Issue of Fully paid shares.] — When a company issues shares to directors as fully paid up shares, and afterwards endeavours to recover a call on such shares : — Held, that the company was prevented by estoppel from re- covering the amount of such calls. Christ- ^hiirch Gas Co. v. Xelly, 51 J. P. 374— Mathew, J. Acting as Member of Company — Estoppel.] — Where a member of a mutual insurance company, afterwards converted into a limited company, has vessels on its books as insured, and pays calls, and otherwise acts as if he were a member of the company, he is, in any action brought against him by the limited company for calls on losses, estopped from denying his liability, and from settmg up either any irregularity in the transfer from the one company to the other, or that the losses were paid without any stamped policies being entered in contravention of 30 Vict. c. 23, 8. 7. Harrow Mutual Ship Insv/rance Com/pajvy V. AsKbumer, 54 L. J., Q. B. 377 ; 54 L. T. 58 ; 5 Asp. M. C. 527— C. A. Gall after Death of Intestate — Grant of Ad- ministration to Company.] — ^An intestate was the holder of shares in a company on which a call was made after his death. The court made a grant of administration to the nominee of the company as a creditor of the estate of the de- ceased. Tomlimon v. Gilby, 54 L. J., P. 80 ; 33 W. K. 800 ; 49 J. P. 632— Butt, J. Liquidation of Member — Order of Discharge — Subsequent Call.] — The liability in respect of calls of a liquidating member of a company where the liquidation proceedings commenced prior to the winding-up of the company, and are pending at the time of the winding-up, is a debt or lia- bility which is not " incapable of being fairly estimated," and which Is therefore provable in the liquidation. When, therefore, under these circumstances, a company winding-up has failed to carry in a proof in the liquidation proceedings of a member of the company for calls, and the liquidating member obtains his discharge, he cannot afterwards be placed on the list of con- tributories. Furdoonjee's case (3 Ch. D. 264) discussed and not followed. Mercantile Mutual Marine Insurance Association, In re, JenJtins' case, 25 Ch. D. 415 ; 53 L. J., Ch. 593 ; 50 L. T. 150 ; 32 W. E. 360— Chitty, J. Affidavit by Liquidator in Support— Wind- ing-up.] — In the winding-up of an unlimited company the court has power to make a call under s. 102 of the Companies Act, 1862, on a proper case shown by the official liquidator ; and the debts of the compapy not having been paid, an affidavit by the liquidator that the call was required for " the adjustment of the rights and liabilities of the members amongst themselves " was held to imply that the call was necessary for the payment of debts, and to be a sufficient compliance with form 33 of the General Order of 1862, rule 33. Norwich EquitaUe Mre As- surance Company, In re. Miller's Case, 54 L. J., Ch. 141 ; 51 L. T. 619 ; 33 W. B. 271- V.-C.B. 9. CBETIFICATES. Estoppel of Company.] — It was the duty of the secretary of a company to procure the execu- tion of certificates of shares in the company with all requisite and prescribed formalities, and to issue them to the persons entitled to receive the same. By a resolution of the director of the company it was provided that certificates of shares should be signed by one director, the secretary, and the accountant. The secretary of the company, having executed a deed purporting to transfer certain shares in the company to one G., a purchaser of such shares, issued to G. a certificate stating that he had been registered as the owner of the shares. Such certificate was in the usual and authorized form, and sealed with the company's seal, but the signature of the director appended thereto was a forgery, and the seal of the company was, in fact, affixed thereto without the authority of the directors. G. deposited the certificate with the plaintiflE as a security for advances, and subse-' quently executed a transfer of the shares to the plaintiff. Neither G. nor the plaintiff had any knowledge or reason to suspect that the certifi- cate was otherwise than a genuine document, or that the matters stated therein were untrue. The company refused to register the plaintiff as owner of the shares, stating that there were no such shares standing in G.'s name in their books : — Held, that the company were estopped by the certificate issued by their secretary from disputing the plaintiff's title to the shares. Shaw V. Port Philip Gold Mining Company, 13 Q.B. D. 103 : 53 L. J., Q. B. 369 ; 50 L. T. 685 ; 32 W. B. 771— D. Fledge — Blank Indorsement — Brokers _ — American Law — Mercantile Usage — Defective Title.] — The English executors of an English holder of shares in an American railroad, in order that the shares might be registered in their names so as to enable them to receive the divi- 895 COMPANY— S/iares and Stock. 396 dends, and if necessary to sell, signed blank transfers with powers of attorney indorsed on the share certiiicates and gave them to their brokers in London. The brokers fraudulently deposited them with a London bank as security for advances made to themselves, and afterwards became bankrupt. According to American law the certificates were not negotiable instruments, but the rightful holder of them with the indorsed transfers signed was entitled to be registered as holder. By the practice of the railway company it was required that the signa- tures of executors to an indorsement should be attested by a consul, which had not been done, and without this they were not regarded on the Stock Exchange as duly indorsed, though the want of this attestation would not prevent regis- tration if the company were satisfied otherwise of the genuineness of the signatures. There was some evidence that under the circumstances of the present case the bank would in America have been held entitled to be registered, on the ground that the executors had estopped them- selves from disputing the titles of the holders of the certificates : — Held, that the executors when they signed the certificates and gave them to the brokers enabled, and must be taken to have intended to enable, them to represent to any one whom it concerned that the executors had given the brokers authority to dispose of the shares in whatever manner was required, and that the executors were estopped from disputing the authority of the brokers to pledge the shares : but held, on appeal, that as the certifi- cates did not represent On the face of them that the person in possession of them would be entitled to the shares, and the absence of attes- tation by a consul made the transfer not in order, and was sufficient to put a party dealing with the brokers on inquiry, the executors were not estopped, and must be held entitled to the shares as part of their testator's estate. Williams V. Colonial Bank, 38 Oh. D. 388 ; 57 L. J., Ch. 826 ; 59 L. T. 643 ; 36 W. K. 625— C. A. Held, also, that as the question whether the bank was to be deemed rightfully in possession of the certificates turned upon transactions in England it was to be decided by English and not by American law, though the consequences of being rightfully in possession of them de- pended on American law. lb. Blank Transfer— Blank Power of At- torney — Deposit of Certificates — Estoppel.] — The New York Central Eailroad Company issue to the registered shareholders share certificates ; each certificate is for ten shares, and on the back there is a blank form of transfer, and a blank form of power of attorney to execute a sur- render and cancellation of the certificate. The mode of transfer is as follows ; — The transfer and power of attorney are signed by the regis- tered shareholder. When this blank transfer reaches the hand of some holder who desires to be registered, his name is filled in by himself or on his behalf, and the certificate is left with the company ; it is then cancelled, the transferee is registered, and a new certificate in his name is issued. In August, 1883, T. & Co., as the brokers of the defendant, purchased for him on the mar- ket certain shares of the New York Central Eailroad Company. . The certificates were per- mitted by the defendant to remain with T. & Co. In November, 1883, T, & Co, deposited with the plaintiffs (with other securities) the certifi- cates for the shares so purchased by them for the defendant as security for a large sum bor- rowed by them from the bank. On the 11th of December following, the bank re-delivered to T. &, Co. the certificates for the shares on the ground that they were desirous of sending them in for registration ; and on the same day, T. & Co. filled in the name and address of the defen- dant on the blank transfers and forms of sor- render of the same certificates as the person in whose name the shares were to be registered. The new certificates were made out in the defendant's name, and were ready for issue on the 20th of December. The blank transfers on the back of these certificates were never signed by the defendant. On the 11th December, when T. & Co. handed the certificates to the agents of the company for registration, they re- ceived from them a receipt, which they then sent to the plaintiffs, which receipt the plaintiffs kept till the beginning of February, 1884, when, having learnt that a member of the firm of T. k Co. had absconded, they sent a clerk to the agents with the receipt, and obtained from them the new certificates for the shares which, up to the commencement of the action, remained in their possession. The plaintiffs claimed a de- claration that they were entitled to the shares : — Held, that the case did not fall within the principle of estoppel, and that the defendant was the legal owner of the shares, and entitled to have the new certificates handed to him. No estoppel can be raised on a document in- consistent with the document itself. Colonial Bank V. Hepworth, 36 Ch. D. 36 ; 56 L. J., Ch. 1089 ; 57 L. T. 148 ; 36 W. E. 259— Chitty, J. The right principle to adopt with reference to documents, such as the certificates with blank transfers duly signed by the registered holders, is that each prior holder confers on the bonS, fide holders for value of the certificates for the time being an authority to fill in the name of the transferee, and is estopped from denying such authority, and to this extent, but no further, is estopped from denying the title of such holder for the time being. By delivery an inchoate legal title passes, but a title by unregistered transfer is not equivalent to the legal estate in the shares or to the complete dominion over them. lb. Transfer in Blank — Delivery of Transfer by Transferor as his Deed — Equitable mortgage of Shares — Motice.] — M., the holder of shares in a company, deposited with S. certificates of the shares and a blank transfer, as security for a debt. Afterwards he fraudulently executed a blank transfer in respect of the shares, and deposited it with the appellants, as security for a debt. On being applied to by the appellants for the shai'e certificate he stated that it was lost or mislaid. The appellants stamped their transfer, filled up the blanks, had it executed by their manager as the transferee, and sent it to the company's ofiice with a request that the company would " certify it," and with an in- demnity against any claim in respect of the missing certificates. The company did not accept the indemnity and declined to certify. Shortly after the executors of S. (who had died) gave notice to the company of their charge upon the shares. The company was incorporated under the Companies Act, 1862. The articles of 397 COMPANY— Dividends. 898 association provided that the shares should be transferable only by deed ; that lost certificates might be renewed upon satisfactory proof of the loss, or in default of proof upon a satis- factory indemnity being given ; and that the company should not be bound by or recognize any equitable interest in shares. Each certificate stated, under the company's seal, that no transfer of any portion, of the shares represented by the certificate would be registered until the certificate had been delivered at the company's' office. The appellants having brought an action against the executors for a declaration of their title to the shares and to restrain the executors from dealing with the shares : — Held, that the transfer to the appellants not having been le-delivered by the transferor after the blanks were filled up was not his deed, and that the appellants had no legal title to the shares ; that as between themselves and the company they never had an absolute and unconditional right to be registered as the share- holders ; that nothing that had happened gave them a right on equitable grounds to displace the original priority of the equitable claim of the executors ; and that the action could not be maintained. SihMewldte v. McMorine (6 M. & W. 200) approved. Soeiete Generale de Paris V. Walker, 11 App. Gas. 20 ; 55 L. J., Q. B. 169 ; 54 L. T. 389 ; 34 W. R. 662— H. L. (B). The principle of Dearie v. Hall (8 Russ. 1), as to tile effect of notice in determining the priorities of equitable rights, is inapplicable to shares in such a company. Per Selbome, Earl 10. OTHER POINTS. Choses in Action — Bankruptcy — Order and Sisposition.] — Shares in a railway company are " choses in action " such as to be excepted from the doctrine of reputed ownership by s. 44 (iii.) of the Banlcruptcy Act, 1883. Colonial Sank v. Whinney, 11 App. Cas. 426 ; 56 L. J., Oh. 43 ; 55 L. T. 362 ; 84 W. R. 705 ; 8 M. B. R. 207— H. L. (E.) B. and J. were in partnership as stockbrokers. Some shares in a railway company were bought with partnership money, and equitably mort- gaged by B. by deposit with the appellant bank to secure the firm's banking account. Before notice of deposit had been given to the company B. and J. separately, and as members of the firm, were made bankrupts : — Held, that the circum- stances were siich as to prove that the bankrupts were not reputed owners of the interest of the appellant bank in the shares. 7J. Indemnity to Trustees.] — See Tetjst and Tkusteb. Charging Order on Shares.] — See Execution. Action for Rescission of Contract to Take — Payment intp Court of Unpaid Calls — Injunction Restraining Porfeiture.] — A shareholder of a company having commenced an action against the company for rescission of his share contract, on the ground of misrepresentation, paid into court the sum demanded by the company for impaid calls, and moved to restrain the company from declaring the shares forfeited. The court, however, dismissed the motion with costs, holding that the proper course was for the plaintiff to have paid the money to the company without prejudice to any question. Ripley v. Paper Bottle Company, 57 L. J., Oh. 327— Chitty, J. Issue of New Stock to Original Shareholders — Profit arising from Sale— Capital or Income.] A testator, who died in 1843, by his will, dated in 1841, bequeathed (inter alia) thirty-five shares in a gas company to trustees upon trust for his wife for life, and subject thereto he directed that the same should form part of his residuary estate. After the death of the testator the gas company resolved to increase its capital by the issue of fresh stock, which it offered to its shareholders. J. K., acting under a power of attorney on behalf of the surviving trustee of the will, who was resident abroad, availed himself of the offer, and took up with his own moneys and in his own name some of the new stock. An action for administration of the testator's estate having been instituted, an order was made on the executrix of J. K., who had died, under which the new stock was sold, and the balance of the proceeds of sale, after repayment of the amount paid for the stock and interest, and deducting therefrom the dividends received by J. E., was paid into court to the credit of the action. On the further consideration of the action, a question arose whether the testator's widow, as tenant for life of the thirty-five original shares, was entitled to this balance, or whether the same formed part of his residuary estate : — Held, that the trust relating to the thirty-five shares must be treated as if it stood alone, it being in respect of that particular trust that J. K. had obtained the power of which he had availed himself : and that the benefit arising therefrom must be treated as belonging to that trust alone :— Held, therefore, that the balance in court represented capital, and that the widow was entitled to the income thereof for life. Bromley, In re, Sanders v. Bromley, 55 L. T. 145— Kay, J. VII. DIVIDENDS. Alteration of Memorandum by Special Reso- lution.] — By the memorandum of association of a company the rights of the preference and ordinary shareholders in respect of dividends were expressly defined. By special resolutions passed in 1872 it was resolved that the applica- tion of the revenue as between the preference and ordinary shareholders should be altered in a manner beneficial to the preference shareholders. These resolutions were acted on for more than ten years without any objection being raised on the part of any shareholder. Subsequently other special resolutions were passed restoring the original appropriation of the revenue prescribed by the memorandum of association i — Held, that even if the resolutions passed in 1872 had been ratified by all the shareholders (as to which there was no evidence), yet the resolutions altered a condition contained in the memorandum within the meaning of s. 12 of the Companies Act, 1862, and were therefore invalid, and that the net revenue ought to be applied in the maimer prescribed by the memorandum of association. AsUwy v. Watson, 30 Ch. D. 376 ; 54 L. J., Oh. 985 ; 54 L. T. 27 ; 33 W. R. 882—0. A. Receipt of, by Agent — Whether Trust 899 COMFA'NY— Dividends. 400 Created.] — A foreign govemment issued a public loan under a decree and an agreement providing for a mortgage to the defendants of certain estates on behalf of bondholders. The defendants received instructions to pay coupons for interest falling due on the 1st of June, leas five per cent, tax, pursuant to a decree of the government which was to take effect subject to the promulgation of a decree modifying the Law of Liquidation. The defendants having received from the government a sum of money to meet the. half-yearly interest less five per ceiit., advertised that they would make such payments. Subsequently the defendants received 10,OOOZ., being the amount of the five per cent., from the commissioners of the government who managed the mortgaged estates, but it did not appear that such commissioners were authorised to remit such sum. The defendants, however, issued a further advertisement that the coupons would be paid in fuU. Finally, they issued an advertise- ment that in accordance with directions of the govemment the coupons would be paid less five per cent. , notwithstanding that the amount re- quired to pay the same in full had been duly re- mitted to them by the commissioners. After such last advertisement the decree modifying the Law of Liquidation was passed. The plaintiff, a bondholder, brought this action, claiming pay- ment of his coupon in full by the agents pursuant to the second advertisement ; — Held, that the 10,0002. was not remitted to the agents by persons who had authority to do so on behalf of the government, and that therefore it was not im- pressed with a trust in favour of the bondholders. Senderson v. Rothschild, 56 L. J., Gh. 471 ; 56 L. T. 98 ; 35 W. E. i85— C, A. Bonns Dividend — Capital or Income.] — A testator bequeathed his residuary personal estate to' his executor T. B. in trust for the testator's vrife for her life and after her death to T. B. Part of the residuary estate consisted of shares in a company whose directors had power, before recommending a dividend, to set apart out of the profits such sum as they thought proper as a reserved fund, for meeting contingencies, equalis- ing -dividends, or repairing or maintaining the works. After the testator's death the directors of the company proposed to distribute certain accumulated profits (which had been temporarily capitalised) as a bonus dividend, to allot new shares (partly paid up) to each shareholder, and to apply the bonus dividend in part payment of the new shares. This proposal was carried out, and with T. B.'s consent new shares were allotted to him and registered in his name,' the bonus dividend on the testator's old shares being applied in part payment of the new shares : — Held, that looking at all the circumstances the real nature of the transaction was that thecompany did not pay or intend to pay any sum as dividend, but intended to and did appropriate the undivided profits as an increase of the capital stock ; that the bonus dividend was therefore capital of the testator's estate, and that the life tenant was not entitled to the bonus or the new shares. Bmch V. Sproule, 12 App. Gas. 385 ; 56 L. J., Oh. 1037 ; 57 L. T. 345 ; 36 W. E. 193— H. L. (E.) Payment out of Capital — Property of a Wasting Nature — Depreciation.] — In 1873 the defendant company was formed for the purpose of purchasing a concession and sub-concessions from several companies, and also all the assets and businesses of the selling companies. The concession conferred the right to work asphalte mines within a defined area in S. for twenty ' years. In 1879, in consideration of the payment of 8,000Z. by the company, ' this concession was modified by extending the term for twenty years, enlarging the area, and reducing the royalties. It appeared from the annual accounts that the company had made a profit in every year except 1874, but in many years no dividend was declared. These accounts contained no item on the debit side representing the prime cost of the asphalte. The accounts for 1884 showed a profit of 39,000Z., of which 1,0002. was written off the price paid for the modification of the con- cession, and the balance was written off the original cost of the concession. The accounts for 1885 showed a profit of 17,0002., out of which, after deducting 1,0002. as before, it was resolved to pay a dividend of 9«. per share on the pre- ferred shares. The concession as modified was not less valuable at the end of 1885 than the original concession in 1873. The plaintiff, on behalf of the ordinary shareholders, brought an action against the company and the directors to restrain the payment of this dividend, on the ground that the accounts made no allowance for depreciation, and that a previous loss of 32,0002. arising on the realisation of the assets of the selling companies had not been made good : — Held, that, in the absence of any diminution of the capital of the company, the court had no power to interfere with the resolution of the shareholders to divide the whole of the profits ; and, further, that the company was entitled to set off against the loss occurring on the realisation of the assets the amount reserved in 1884 ; and that the plaintiff was not entitled to an injunc- tion. Lee V. Neuehatel Asphalte Company, 57 L. J., Oh. 622 ; 58 L. T. 553 — Stirling, J. Affirmed 41 Oh. D. 1 ; 58 L. J., Gh. 408 ; 37 W. E. 321— C. A. The payment, by the directors of a company, of a dividend to the shareholders out of capital is illegal and ultra vires, and the rolling stock of a railway company is part of its capital. But where the directors have been, for several yeara, replacing, out of revenue, rolling-stock which has been worn out, and the rolling-stock appeared to be improved, and to be greater in money value than it was five years before, and although there were some deficiencies in it which the directors were gradually supplying, it did not appear that the traffic had been thereby interfered with or inconvenience suffered, the court refused to restrain the payment of a dividend to the preference shareholders, which had been declared at a general meeting, until the deficiencies in the rolling-stock had been supplied. The court will not restrain acts done by the directors in the exercise of their discre- tion in managing the affairs of their company, unless the acts complained of are illegal, as ultra vires. Kehoe v. Waterford and Lvmerich Railway, 21 L. E., Ir. 221— M. E. liability of Directors.] — awkes,5SL.J., Q. B. 446 ; 56L.T. 919; 35 W. E. 649 — D. See also McHardy v. Liptrott, post, col. 559. No appeal lies from the decision of a county court judge refusing to grant a new trial when applied for on the ground solely of the verdict being against the weight of evidence. Wilton v. Leeds Forge Valley Company, 32 W. E. 461 — D. Equitable Jurisdiction. ] — An appeal lies from an order made in an interlocutory proceeding, by a judge of a county court, by virtue of the equitable jurisdiction conferred by the County Courts Act, 1865. Jonas v. Long, 20 Q. B. D. 564 ; 57 L. J., Q. B. 298 ; 58 L. T. 787 ; 36 W. E. 315 ; 52 J. P. 468—0. A. Interpleader — ^Amount not exceeding £20,] — An appeal does not lie, even by leave oJE the judge. from the decision of the county court in proceed- ings in interpleader, where neither the money claimed, nor the value of the goods or chattels claimed, or of the proceeds thereof, exceeds 20Z. Collis V. Leiois, 20 Q. B. D. 202 ; 57 L. J., Q. B. 167 ; 57 L. T. 716 ; 36 W. E. 472— D. . Less Amount than £20 deposited. ]— Where in an interpleader proceeding in a county court the claimant deposits the amount of the value of the goods claimed as fixed by appraisement under s. 72 of the County Courts Act, 1856, he cannot, if the amount so deposited be less than 201., claim to appeal under s. 68 of the act on the ground that the value of the goods was over 20Z., and that a less amount was deposited because it was sufficient to satisfy the execution creditor's judgment. White v. Milne, 58 L. T. 225— D. Costs of Interpleader.] — In an inter- pleader proceeding on the application of the sheriff, the claimant, if successful, is entitled to recover as costs from the execution creditor the sheriff's charges subsequent to the interpleader order. The incidence of such charges is a matter of law and a proper subject of appeal from a county court to the High Court under the County Courts Act, 1850 (13 & 14 Vict. c. 61), s. 14. Goodman v. Blake, 19 Q. B. D. 77 ; 57 L. T. 494 — D. Decision under Agricultural Holdings Act.] — An appeal lies from a decision of a county court judge in the matter of a dispute heard and determined by him under s. 46 of the Agricultural Holdings Act, 1883, under the general powers of appeal contained in s. 13 of the County Courts Act,. 1867. Hammer v. King, 57 L. T. 367 ; 51 J. P. 804— D. Friendly Society — Bules. J— In the case of an unregistered society under s. 30, sub-s. 10, of the Act of 1875 (explained by 42 Vict. c. 9), the right of appeal to a county court or court of summary jurisdiction overrides any rules of the society to the contrary. Knowles v. Booth, 32 W. E. 432— D. '• Application to County Court."] — By s. 22 of the Friendly Societies Act, 1875, disputes between members" of a friendly society and the society or its oflScers are to be decided in manner directed by the rules of the society, and by sub-s. {S), "where the rules contain no direction as to disputes, or where no decision is made on a dis- pute within forty days after application to the society for a reference under its rules, the member or person aggrieved may apply either to the county court, or to a court of summary jurisdiction, which may hear and determine the matter in dispute " : — Held, that the application to the county court contemplated by sub-s. (^) must be taken to be an application in the form of an action commenced in the county court, and not a reference to the county court judge sitting as an arbitrator, and that there was an appeal from the decision upon such application to the High Court. WiVnnson v. Jagger, 20 Q. B. D. 423 ; 57 L. J., Q. B. 254 ; 58 L. T. 487 j 36 W. E. 169 ; 52 J. P. 533— D. " Betermination of the Court " — Judgment pro form&. ] — A divisional court has no juris- diction to hear a motion to set aside a judgment 559 COUNTY COUET— COUET. 560 entered by a county court judge pro form^ in order to expedite an appeal, such entry of judg- ment not being a determination or direction of a county court within the meaning of the 14th section of 13 & 14 Vict. c. 61. Ckapmam,'^. Withers, 68 L. T. 24— D. Committal for Contempt. ] — The superior court will decline to exercise any appellate jurisdiction over the county court in matters of fine or com- mittal for contempt, except where there is no reasonable evidence of any contempt having been committed, and the liberty of the subject requires protection. Reg. v. Jordan, 36 W. E. 589 — D. To Court of Appeal in Admiralty Matter.] — See Shippins. b. Mode of and Time for. Appeal by Ilotlon — ^Appeal by Special Case abolished.] — All appeals from county courts to the Queen's Bench Division of the High Court must, since the Crovm Office Kules, 1886 (Ord. LIX. rr. 10 et seq.), be by notice of motion, notwithstanding the 13 & 14 Vict. c. 61, ss. 14, 15, which gave an appeal by special case. Reg. V. Kettle, 17 Q. B. D. 761 ; 55 L. J., Q. B. 470 ; 54 L. T. 875 ; 34 W. K. 776— D. Before Crown Office Rules, 1886.]— An appeal from the decision of a county court judge should be by motion ex parte in the first instance, under the County Courts Act, 1875, s. 6, and not by giving notice of motion under Ord. XXXIX. r. B. Shapoott v. Clmppell (12 Q. B. D. 58) questioned. Mathews v. Ovey, 13 Q. B. D. 403 ; 53 L. J., Q. B. 439 ; 50 L. T. 776—0. A. The provisions of Ord. XXXIX. r. 6, apply to motions for new trials in county court cases made on appeal under the provisions of the County Court Act, 1875 (38 & 39 Vict. c. 50), s. 6. A new trial will not be granted in such a case, on the ground of the improper rejection of evidence, unless some substantial wrong or miscarriage has been occasioned. Shapoott v. Chappell, 12 Q. B. D. 58 ; 53 L. J., Q. B. 77 ; 32 W. E. 183— D. Time for — From Judgment not from Refusal of New Trial.] — In an action tried in the county court an appeal will not lie against the decision of the county court judge on an application for a new trial j so that the time within which the unsuccessful party in the county court may appeal to the Queen's Bench Division begins to run from the date of the judgment at the trial, and not from the date of the judge's decision on the application for a new trial. MeHardy v. Uptrott, 19 Q. B. D. 151 ; 56 L. J., Q. B. 459 Where an application for a new trial was made to a county court judge within two days of the original trial, and he took a fortnight to con- sider and then refused to grant a new trial, and a rule nisi for a new trial was obtained from the High Court within two days of such refusal : — Held, that such rule was obtained out of time, as the eight days for appealing began to run from the day of the original trial, and not from the refusal of the county court judge. Morris v. Lowe, 34 W. E. 45— D. From Verdict not from Judgment.] — When the finding of a jury in a county court is complained of, the twenty-one days within which an appeal may be entered is to be calculated from the time when the verdict was given although the judgment upon it was not given until a subsequent day. Raumsley v. LaTieashire and Yorhshire Railway, 35 W. R. 771 — D. c. Practice. Security for Costs.] — The plaintiff, an infant, brought an action in the county court, and sued by his next friend. Judgment was given for the defendants with costs, but they were unable to obtain payment owing to the next friend's in- solvency. The plaintiSf appealed from the judg- ment. On an application by the defendants for an order that the next friend should give security for the costs of the appeal : — Held, that by Eules of Supreme Court, 1883, Ord. LIX-., r. 17, which applies the provisions of Ord. LVIII., r. 15, to appeals from county courts, there was power to make an order, and as the next friend was in- solvent, and was prosecuting the appeal for the benefit of another person, she must give security. Swain v. Follows, 18 Q. B. D. 585 ; 56 L. J., Q. B. 310 ; 56 L. T. 335 ; 35 W. E. 408— D. Leave of Judge— Discretion as to Terms.] — A county court judge having given a defen- dant leave to appeal, but subject to a condition that he should pay the plaintiff's costs of the appeal in any event, and should also, in case the appeal was unsuccessful, pay the costs of the trial upon the higher scale, — the divisional court held that it had no power to interfere with the discretion vested in him by 30 & 31 Vict. c. 142, s. 13. Goodes v. Cluff, 13 Q. B. D. 694— D. Power of High Court to enter Judgment.]— In an appeal from a county court in an action for damages, the court has power to give judgment for the plaintiff for the sum claimed, if satisfied, upon the whole of the evidence before the county court judge, that judgment ought to be so entered, although judgment had been given by the county court judge for the defendant. King V. Omford Co-operative Society, 51 L. T. 94 — D. COURT. I. LiVEEPOOL COUET OF PASSAGE, 561. II. Palatine Court of Lancaster, 561. III. Salfoed Hundred Court, 563. IV. Stannaries Court, 563. V. In other Cases. 1. Of Appeal. — See Appeal. 2. Of Admiralty. — See Shipping. 3. Of Sankruptcy. — See Bankruptct. 4. County Court. — See County Court. 5. Of Divorce. — See Husband and Wipe. 6. Of Prolate.— See Will. 7. Mayor's Court.— See Mayor's Court. 561 COURT. 562 I. LIVERPOOL OOUET OF PASSAGE. Power to make Bules — ^Eule ordering Security for Costs.]— By 6 & 7 Will, i, c. 135, b. 4, the assessor of the Liverpool Court of Passage may make rules and regulations concerning the practice and costs of the court. The assessor made a rule that in frivolous and vexatious actions the registrar should have power to order the plaintifE to give security for the defendant's costs : — Held, that the statute did not give power to make such a rule, and the rule was invalid. Reg. v. Liverpool Mayor, 18 Q. B. D. 510 ; 56 L. J., Q. B. 413 ; 56 L. T. 314 ; 35 W. E. 475— D. Jurisdiction in Interpleader.J—The rules of the Court of Passage do not give that court the jurisdiction in interpleader contained in Ord. LVII. r. 8, of the rules of the Supreme Court, 1883, and even if rules had been framed to that effect they could not give such a jurisdic- tion, as they would be in that respect ultra vires. The power to decide summarily without consent questions in interpleader is not a " rule of law" within the meaning of s. 91 of the Judicature Act, 1873. Speers v. Baggers, 1 C. & E. 503— WUls, J. Protection of OfB.cers.] — Officers of the court are not protected in the case of process executed under an interpleader order made without juris- diction, though good on the face of it, if such order was obtained on their own application. The relief or remedy, the power to grant which is conferred on superior courts by s. 89 of the Judicature Act, 1873, only refers to the relief and remedies to be administered in the action, and as the result of the action, and not to an incidental and extraneous proceeding arising out of the levy of execution, such as inter- pleader, n. IL PALATINE COUET OF LANCASTER. Administration — Intestacy — Grant Se honis non to Nominee of Duchy.] — ^Where an intestate had died leaving no known relatives, and his estate had been partly administered by his widow, who died leaving a will, the court made a ^ant de bonis non to the nominee of the Duchy of Lancaster, who was the residuary legatee of the widow. Jvard, In goods of, 11 P. D. 75 ; 56 L. T. 673— Hannen, P. Costs^Patent; Action — Power 0Ter.]^At the trial of an action in the Palatine Court to re- strain the infringement of a patent, the Vice- Chancellor held that the patent was invalid in consequence of a claim being made which was bad, and dismissed the action with costs. The defendant had delivered particulars of objec- tions, and the Vice-Chancellor stated that he was of opinion that the defendants should have the costs of their witnesses who attended to support the particulars of objections, though they had not been called. On taxation, the registrar disallowed these costs, but the Vice- Chancellor overruled his objection : — Held, that the discretion of the Court of Chancery and the Palatine Court with reference to costs was not taken away by Lord Cairns' Act and Sir John Eolt's Act in the cases which those acts enabled those courts to try, and that these courts ought not to follow by analogy a rule which applied to courts liaving no discretion as to costs, and therefore the Vice-Chancellor had power to give these costs of the particulars of objections to the defendant without a certificate under s. 43 of the Patent Law Amendment Act, 1852. Parncll V. Mart, 29 Ch. D. 325 ; 53 L. T. 186 : 33 W. R. 481— C. A. Befireshers — Copies of Correspondence.] — The amount of the refreshers allowed to counsel in cases in the Palatine Court is in the discretion of the taxing-master, and he is not bound by Ord. LXV. r. 27, sub-s. 48, of the rules of the Supreme Court. Where a case depended very much on the terms used in correspondence con- ducted in French between the plaintiffs inter se and the defendants inter se, the court refused to overrule the decision of the judge who heard the case, affirming the decision of the taxing-master, allowing the costs of copies of the correspondence in French as well as of the English translation for the use of counsel. Ebra/rd v. Gassier, 55 L. T. 741— C. A. Judgment by Default— Setting aside.] — Ac- cording to the true construction of Ord. XXXIII. r. 21, of the rules of the Palatine Court of Lan- caster, a party against whom judgment has been given by default must make application to set it aside within six days if the court be then sitting, and, if it be not then sitting, on the next day on which the court shall be sitting to hear such motions. An application for extension of time by a party who desires to apply to set aside a judgment made against him by default, may be made at the time when he makes the application to set aside the judgment, if the action is still pending. Bradsliaw v. Warlow, 32 Ch. D. 403 ; 55 L. J., Ch. 852 ; 54 L. T. 438 ; 34 W. R. 557— C. A. Service of Writ out of Jurisdiction — Leave to Issue.] — Ord. II. r. 4, of the Chancery of Lan- caster Rules, which provides that " no vprit of summons for service out of the jurisdiction . . . . . . shall be issued without the leave of the court or Vice-Chancellor," applies to all writs for service out of the jurisdiction of the Palatine Court, whether the person to be served is or is not within the jurisdiction of the High Court. Accordingly, leave of the Vice-Chancellor, or Court, of the County Palatine for issue of the writ out of the jurisdiction must be obtained before making application to the Court of Appeal under 17 & 18 Vict. c. 82, s. 8, for leave to serve the writ upon a person out of the jurisdiction of the Palatine Court, but within the jurisdiction of the High Court. Walker v. Bodds, 37 Ch. D. 188 ; 57 L. J., Ch. 206 ; 58 L. T. 291 ; 36 W. R. 133— C. A. Fund paid in under Trustee Belief Act — Transfer to Chancery Division.] — A fund had been paid by trustees into the Court of Chan- cery of the County Palatine of Lancaster under the Trustee Relief Act. A person claim- ing to be entitled to the fund, and to whom notice of the payment in had been given, resided out of the jurisdiction of that court, and applied to the Court of Appeal under s. 8 of 17 & 18 Vict. c. 82, for a transfer of the matter to the Chancery Division of the High Court, and a 663 COVENANT— CREMATION. 664 transfer of the fund to the Paymaster-General. No step had been taken by the applicant in the Palatine Court : — Held, that the applicant was not a " party proceeding " in the matter within the meaning of the section, and that the court had no jurisdiction to order the fund to be trans- ferred. Heywood, In re, 58 L. T. 292— C. A. III. SALFOED HUNDRED COURT. Jurisdiction— Omitting to plead to.] — S. 7 of the Salford Hundred Court of Record Act, 1868, enacts that " no defendant shall be permitted to object to the jurisdiction of the court otherwise than by special plea, and, if the want of juris- diction be not so pleaded, the court shall hare jurisdiction for all purposes " :— Held, that the defendant, against whom judgment had been recovered in the Salford Hundred Court, he not having pleaded to the jurisdiction, could not have a writ of prohibition on the ground of want of jurisdiction, inasmuch as the above-mentioned section, under the circumstances, conferred juris- diction on the Salford Hundred Court. Oram V. Srearey (2 Ex. D. 346), overruled. Chad- wiek V. Sail, U Q. B. D. 855 ; 54 L. J., Q. B. 396 ; 52 L. T. 949— C. A. IV. STANNARIES COURT. Appeal from Order of Vice-Warden — Deposit by Appellant as Security.]— Notwithstanding that the appellate jurisdiction of the Lord Warden of the Stannaries has, by the Judicature Act, 1873, been transferred to the Court of Appeal, the requirements of the Stannaries Act, 1869, s. 32, as to the deposit by the appellant of 201. in the hands of the Registrar of the Stannaries Court prior to appealing, are still in force. West Devon Great Consols Mine, In re, 38 Ch. D. 51 ; 57 L. J., Ch. 850 ; 58 L. T. 61 : 36 W. R. 342— C.A. Winding-up — Order for Inspection of Docu- ments.] — The practice of the Stannaries Courtis the same as that of the High Court of Justice, that the mere fact of a petition is not enough to justify an order for inspection of books. But if grounds are shown, the petition may properly be ordered to stand over to allow the petitioner to enforce hisright as a shareholder to inspection. The right of inspection under the 22nd section of the Stannaries Act, 1855, is personal to the shareholder, and does not extend to his solicitors or agents. West Devon Great Consols Mine, In re, 27 Ch. D. 106 ; 51 L. T. 841 : 32 W. R. 890— C. A. COURT PEES. See PRACTICE. In Bankruptcy.] — See Bakkeuptcy. COVENANT. Whether Independent,] — Covenants in a separation deed, by which respectively the husband has covenanted to pay an annuity to a trustee for the wife, and the trustee has cove- nanted that the wife shall not molest the hus- band, must be construed as independent cove- nants in the absence of any express terms making them dependent, and therefore a breach of the covenant that a wife shall not molest the hus- band, is not an answer to an action for the an- nuity. Fearon v. Aylesford {Earl), 14 Q. B. D. 792 ; 54 L. J., Q. B. 33 ; 52 L. T. 954 ; 33 W. R. 331 ; 49 J. P. 596— C. A. In Conveyances.] — See Vendoe and P0e- CHASBE. In Leases.]— &« Landloed and Tenant. In Mortgages.] — See Moetgage. In Deeds.] — See Deed and Bond. CREMATION. Whether a Misdemeanour.] — To bum a dead body, instead of burying it, is not a mis- demeanour, unless it is so done as to amount to- a public nuisance. If an inquest ought to be held upon a dead body, it is a misdemeanour so to dispose of the body as to prevent the coroner from holding the inquest. Beg. y. Price, 12 Q. B. D. 247 ; 53 L. J., M. C. 51 ; 33 W. R. 45 n. ; 15 Cox, C. C. 389— Stephen, J. S. P. Reg. V. Stephenson, 13 Q. B. D. 331 ; 53 L. J., M. C. 176 ; 52 L. T. 267 ; 33 W. R.44 ; 49 J. P. 486— C. C. R. CRIMINAL LAW. I. Peesons, Liability of, 565. II. 10. 11. 12. 13. 14. 15. 16. 17, Offences. Abduction of Women and Children. — See infra, 20, b. Adulteration of Food and Drink. — See- Health. Assault. — See infra, 20, c. Banhruptcy Act, Offences against. — See Banketiptoy. Digamy, 566. Conspiracy, 566. Defamation. — See Defamation, Disorderly House. — See Disoedeelt House. Flections — Corrupt Practices. — See Election Law. Embezzlement by Clerhs or Servants, 567. Emiexzlement and Frauds by Agents, Brokers and Trustees, 568. False Pretences, 569. Falsification of Accounts, 572. Felony and Felons, 573. Forgery, 574. Larceny and Receivers, 574. Libel. — See Defamation. 565 CEIMINAL IjAW— Persons, Liability of. 566 18. Zunaties, Ill-treatment of. — See infra, 20, d. 19. Misdemeanours, 578. 20. Murder, Manslaughter and Offences against the Person, a. Murder and Manslaughter, 578. i. OfEences against Women and Children, 580. c. Assaults and Wounding, 582. d. Ill-treatment of Lunatics, 583. 21. Oiscaiity and Indecency, 583. 22. Perjury, 583. 23. Property, Offences as to, 584. 24. Railways, 585. 25. Rape and Offences against Women and Children. — See supra, 20, b. 26. Sanitai-y laws. — See Health. 27. Sedition, 585. 28. Treason-Felony, 586. 29. Unlawful Assembly, 586. 30. Vagrants and Vagrancy. — See Vageant. III. Jtjeisdiction, Practice and Pko- CEDtTKB. 1. Jurisdiction, 586. 2. Indictment, 587. 3. Evidence, 588. 4. Trial, 591. 5. BaU, 594. 6. Error, 594. 7. New Trial, 594. 8. Prisoners, 594. I. PESSONS, LIABILITY OF. Hens rea. J — ^I do not think that the maxim as to the mens rea has so wide an application as it is sometimes considered to have. In old times, and as applicable to the common law or to earlier statutes, the maxim may have been of general application ; but a difference has arisen owing to the greater precision of modem statutes. It is impossible now to apply the maxim generally to all statutes, and it is necessary to look at the object of each act to see whether and how far knowledge is of the essence of the offence created. Cundy v. Lecocg^, 13 Q. B. D. 207 ; 53 L. J., M. C. 125 ; 51 L. T. 265 ; 32 W. K. 769 ; 48 J. P. 599— Per Stephen, J. Husband and Wife— Coercion.] — Upon an indictment for highway robbery with violence D. and his wife were found guilty, the jury finding as to the wife that she had acted under the compulsion of her husband : — Held, that as to the wife the verdict amounted to one of not guilty. Reg. v. Byltes, 15 Cox, C. C. 771— Stephen, J. 590. Evidence, Admissibility.] — See post, col. Drunkards.] — See Reg. v. Boherty, post, col. 679. II. OFFENCES. 1. ABDUCTION OF WOMEN AND CHILDREN.- 6'ee infra, 20, b. 2. ADULTBEATION OF FOOD AND DRINK.— &e Health. 3. ASSAULT.— &e infra, 20, c. 4. BANKRUPTCY ACT, OFFENCES AGAINST. — See Bankbtjptcy. 5. BIGAMY, Evidence — Marriage prima facie Illegal.] — On a trial for bigamy two certificates- were produced, one purporting to be the certi- ficate of the marriage, in 1843, of the first wife to A. prior to the marriage with the prisoner in 1875 ; the other purporting to be a certificate of the death of A. in 1880, subse- quent to the marriage with the prisoner : — Held, that as prima facie the marriage with the prisoner was illegal, the so-called first wife could give evidence on the trial of the accused. Reg.v.Ayley, 15 Cox, C. C. 328 — Kerr, Commissioner. Proof of First Marriage.] — Where the proof of marriage is supported by a copy of the certificate and evidence that the prisoner cohabited with a person of the same name immediately after- wards : — Held, that in the absence of witnesses of the marriage, or some further evidence, the proof was insufficient. Reg. v. Simpson, 15 Cox, C. C. 323— Com. Serj. In charges of bigamy it is incumbent upon the prosecution to prove the validity of the first marriage. Where, therefore, the first marriage has been contracted without the due publication of banns required by 4 Geo. IV. c. 76, the pro- secution, in order to show that the case is not within the statute, must prove that the want of due publication was unknown to one of the parties previously to the marriage in accordance with Rex V. Wroxton (4 B. & Ad. 640). Reg. y. Xay, 16 Cox, C. C. 292— Huddleston, B. The prisoner went through the form of mar- riage with a woman whose sum ame was Abel. In order to conceal the fact, he published her banns in the surname of Anderson, but, except that she signed the register in the name of Anderson, there was no evidence to show that she knew of the misdescription until after the solemnisation of the marriage. Subsequently, and during her lifetime, the prisoner went through the ceremony of marriage with another woman : — Held, that as in order to render a marriage invalid within 4 Geo. IV. c. 76, s. 22, it must be contracted by both parties with a knowledge that no due pub- lication of banns had taken place, it was incum- bent on the prosecution to show that one of the parties was unaware of the misdescription, and that there was no evidence of such want of knowledge. li. 6. CONSPIRACY. Indictment against Two — Acquittal or Con- viction of both.] — ^Where two persons are indicted for conspiring together, and they are tried to- gether, both must be acquitted or both convicted. Reg. V. Manning, 12 Q. B. D. 241 ; 53 L. J., M. C. 85 ; 51 L. T. 121 ; 32 W. R. 720 ; 48 J. P. 536— D. Existence of— Evidence of Criminal Object.] — See Reg. v. Beasy, post, col. 586. Conspiracy and Protection of Property — In- 567 CRIMINAL -LA^—Offenees. 568 timidation.] — An intimation conveyed in a letter to an employer that his shop would be picketed, in language so threatening as " to make such employer afraid," amounts to "intimidation" within the meaning of s. 7, sub-s. 1, of the Con- spiracy and Protection of Property Act, 1875 ; whether the picketing amounts to an unlawful watching or besetting within sub-s. 4 or not. Judge T. Bennett, 36 W. R. 103 ; 52 J. P. 247 7. DEFAMATION.— >S«e DEFAMATION. 8. DISORDBELY HOUSE.— -SeB Dis- OEDEKLT House. 9. ELECTIONS — CORRUPT PRACTICES. — See Election Law. 10. EMBEZZLEMENT BY CLERKS OR SERVANTS. Clerk or Servant — Assistant Overseer.] — Upon an indictment under 24 & 25 Vict. c. 95, s. 68, for embezzlement by a clerk or servant, it is necessary to prove that the prisoner was ap- pointed or employed to collect or receive money for his employer. C, having been nominated by the inhabitants of a township as an assistant overseer, and the nomination not specifying as one of the duties he was to perform the duty of collecting or receiving money : — Held, that in- asmuch as under 59 Geo. 4, c. 12, s. 7, an assistant overseer can only be appointed by justices for such purposes as are specified in the nomination, C. could not be convicted of embezzling rates collected by him as a clerk or servant of the inhabitants within the meaning of 24 & 25 Vict, c. 95, s. 68. Reg. v. Coley, 56 L. T. 747 ; 51 J. P. 710 ; 16 Cox, C. C. 226—0. C. R. Moneys of " Copartnership" — Association not for Purposes of Gain.] — An association having for its object, not the acquisition of gain, but the spiritual and mental improvement of its members, is not a " copartnership," within the meaning of the term as used in 31 & 32 Vict. c. 116, s. 1. Consequently a member of such an association who has embezzled moneys belonging to it cannot be convicted under the above- mentioned act of embezzling the moneys of a " copartnership." Reg. v. Rohson, 16 Q. B. D. 137 ; 65 L. J., M. C. 55 ; 53 L. T. 823 ; 34 W. R. 276 ; 50 J. P. 488 ; 15 Cox, 0. C. 772— C. C. E. Separate Charges included in one Indictment — Evidence of Motive and Intention.] — An indictment charged a prisoner with having as a booking clerk of certain steamship owners embezzled the moneys of his masters on three separate occasions, the charges being contained in three counts of the same indictment. In support of the first count, it was proved, amongst other things, that the prisoner received money for the carriage of animals by steamer which it was his duty to pay over to his masters' cashier ; in support -of the second count, that he was supplied with a number of tickets for issue to passengers by his masters' steamers, which purported to be numbered con- secutively, but were not examined before they were delivered to him. The tickets were tied up in bundles, and were in the prisoner's charge, he alone having a key of the case in which they were kept. Certain tickets, bearing numbers corresponding to the numbers of certain of the tickets in one of the bundles delivered to the prisoner, assuming such bundle to have been complete, were put in evidence, which tickets were stamped in a manner similar to other tickets which the prisoner had issued to pas- sengers by one of the steamers, and which were notched as they would have been had they been used by passengers on board such steamer, and evidence was given that the prisoner had not handed over to the cashier any money in respect of such tickets. Evidence was also given in support of the third count, but upon this count the jury found the prisoner not guilty, while they convicted him upon the first and second counts. The jury were directed, as to the first count, that they might take into consideration the evidence given as to the prisoner's conduct in relation to the matters charged in the second and third counts ; and as to the second count, that if they were of opinion, from the whole of the evidence that the prisoner had issued the tickets for money in the ordinary way, and taken the money he had received for his ovpn use, making false entries in his books to conceal it, they might find him ' guilty : — Held, that the jury were justified in presuming from the evidence in support of the second count that the prisoner had issued tickets and received money for them, which he had appropriated ; and that they were at liberty, in order to arrive at a conclusion upon any one of the charges, to take into con- sideration the evidence given in support of the other charges, notwithstanding the fact that upon one of suctf charges they found a verdict of not guilty. Reg. v. Stephens, 58 L. T. 776 ; 62 J. P. 823 ; 16 Cox, C. C. 387— C. C. R. 11. EMBEZZLEMENT AND FRAUDS BY AGENTS, BROKERS, AND TRUSTEES. Money intrusted for Specific Purpose — Con- version of Money hy Stockbroker.] — On the 2nd November, 1885, W., by letter instructed the prisoner, a stockbroker, to buy for him on the following day certain stock at 90, to hold for a rise, the time to close to be left open, and inclosed a cheque for 21Z. 5«. " for cover and commission." On the 3rd November the stock specified was at 91J, and the prisoner paid the cheque into his bank without purchasing, and subsequently spent the money for his own use, the balance standing to his credit at his banker's on the 14th November being only SZ. Upon a case reserved at the trial of an indictment under 24 & 25 Vict. c. 96, ■ s. 75, which charged the prisoner for that he having been entrusted as a broker and agent with a security for the payment of money, with a direction in writing to apply it for a specific purpose, in violation of good faith, and contrary to the terms of such direc- tion, converted to his own use such security : — Held, that the prisoner was merely the agent of W. to hold and apply the money for which the cheque was sent for a specific purpose, and that he was rightly convicted under the circumstances of having converted the cheque to his own use, as charged in the indictment. Reg. v. Ororvmire, 569 CEIMINAL 'LKW—Offences. 570 54 L. T. 580 ; 51 J. P. 104 ; 16 Cox, C. C. 42— C. C. R. Agent — Direction in Writing — Vendee of Goods.] — B. agreed to purchase cora from S. and T. at a certain price, and reoeiyed delivery orders for the same. Before actually taking delivery, B. signed an undertaking directed to S. and T. to the following efEeot : — " In consideration of your delivering to me the Indian corn bought this day, I hereby undertake to hand you the pro- ceeds of the same as and when received, and to hold myseLE responsible for deficiency should there be any." B. subsequently sold the corn and appropriated the proceeds to his own use : — Held, that B. was not an agent but the vendee of the goods, and that s. 75 of 24 & 25 Vict. c. 96, did not apply. Beg. v. Bredin, 15 Cox, C. C. 412 —Butt, J. " Or other Agent."]— In 24 & 25 Vict. c. 69, s. 75, — which enacts that whosoever, having been intrusted as a banker, merchant, broker, attorney, or other agent, with any chattel or valuable security for safe custody or for any special purpose, without any authority to sell, negotiate, transfer, or pledge, shall in violation of good faith and contrary to the object or purpose for which such chattel, security, &c., was intrusted to him, sell, negotiate, &e., or in any manner convert to his own use or benefit such chattel or security, shall be guilty of a misdemeanour — the words " or other agent " apply to persons whose occupation is similar to those enumerated in the section, and do not include any ordinary agent who may from time to time be intrusted with valuable securities. — Where, therefore, the prisoner, who was not a banker, merchant, broker, or attorney, was em- ployed by the prosecutors, who were railway contractors, to procure for them a contract for the construction of a foreign railway, and was charged under s. 75 with having misappropriated valuable securities with which the prosecutors had intrusted hiTn in the course of his employ- ment : — Held, that the facts disclosed no ofEence within the meaning of the section, and that the prisoner was not liable to be committed with a view to his extradition. Beg. v. PortVigal or Be Portugal, In re, 16 Q. B. D. 487 ; 55 L. J., Q. B. 567 ; 34 W. E. 42 ; 50 J. P. 501— D. By Trustee.] — T., a fruit broker, applied to his bankers for an advance as against certain goods which had been consigned to hioi and were then at sea, he depositing with them the indorsed bills of lading. Before making the advance the bankers required him to sign a letter of hypothe- cation, by which he undertook to hold the goods in trust for the bankers, and to hand over to them the proceeds, " as and when received," to the amount of the advance : — Held, that this letter contained a declaration of an express trust, such as would make the giver of it a trustee of the proceeds within the meaning of s. 80 of the Larceny Act, and his appropriation of them to his own use an ofEence against that section. Beg. V. Townsliend, 15 Cox, C. C. 466 — Day, J. 12. FALSE PRETENCES. Word Competition — Advertisement containing False Statement of Fact.] — The following adver- tisement was inserted by the prisoner in a news- paper, viz. : " Barnardo. — 21., \l., 10«., for most words from Barnardo. No single letters to be used. All others in heavy black type from Nuttall's 1886 Diet. Proceeds to go to Dr. Barnardo's Home for Destitute Children. Alpha- betical lists, with Is. %d., to Rev. A. Brient, Holt, Trowbridge, Wilts, by March 5. Result 8th." No such person as the Rev. A. Brient existed at the address given, and sums of money which certain persons were induced to send in the belief that a bonS, fide competition was indicated by the advertisement, were received and appropriated by the prisoner : — Held, that the advertisement was capable of the 'construc- tion put upon it in the indictment ; that it was intended to convey the impression that there was a person named A. Brient, living at Holt, Trowbridge, in the county of Wilts, who was a minister of religion, and that he had instituted a bon& fide competition, and had made arrange- ments to present prizes to the successful com- petitors, and to give the proceeds derived from the entrance fees of competitors, after deducting the prizes, to a charitable institution ; and that it was a question for the jury whether the persons who had sent the moneys, with the obtaining which the prisoner was charged, had sent them acting under that impression. Beg. V. Bandell, 57 L. T. 718 ; 52 J. P. 359 ; 16 Cox, C. C. 335— C. C. E. Sale of Farm Stock subject to Bill of Sale — Onus of Proof of Consent.] — S. was tenant of a farm, over aU the live and dead stock on which, and all other live and dead farm stock which at any time thereafter should be in or about the premises, he had granted a bill of sale. In the ordinary course of business S. would have been at liberty to seU stock on the farm, but two months after the granting of the bill of sale he sold all the farm stock which was upon the farm, without anything being said as to the ownership of the stock, or as to the existence of the bill of sale. No evidence was given by S. at the trial of an indictment against him for false pretences to prove that he had obtained the leave of the bill of sale holder to the selling of the stock in question : — Held, that the onus lay upon S. of proving that he had leave to sell the stock, and not upon the prosecution ; that S. had by the act of selling the stock represented himself as being the absolute owner ithereof ; and that the prosecutor had paid for the stock in the belief that S. had authority to sell the same, and was guilty of the ofience of obtaining money by false pretences. Beg. v. Sampson, 52 L. T. 772 ; 49 J. P. 807— C. C. R. Proof of Falsity — Evidence.] — The defendant, who was agent to an insurance company, and whose business it was to collect the annual premiums from persons insured in the company, collected from one Vellam, in 1883, the annual premium then due for renewal of Vellam's policy of life assurance. The defendant did not account to the company for this premium, but appro- priated it, and notified to the company that Vellam had failed to renew his policy. The company thereupon treated the policy as lapsed. On the 7th of April, 1884, the defendant called on Vellam for his annual premium as usual. Vellam was unable to pay the amount on that day, and requested the defendant to call later. 571 CEIMINAL LAW— 0/mces. 572 The defendant came again on the 21st of April, and received from Vellam a sum of money on account of the annual premium. It was for obtaining this amount that the defendant was indicted, the indictment charging that by falsely pretending to Vellam that his policy was then in full force, and that the current year's premium thereon was then due and payable, and that he the defendant was then authorised to receive the same, he induced Vellam to pay the amount. On the 2l8t of April the days of grace within which the premium had to be paid had expired. Vellam was aware of this, but the defendant told him that the payment would be effectual : — Held, by Lord Coleridge, C. J., Huddleston, B., and Mathew, J., that there was evidence for the jury in support of the indictment. Held, by Grove, J., and Manisty, J., 1;hat there was no evidence to go to the jury in support of the in- dictment, for that the company were bound by the receipt of their agent in 1883, and conse- quently the policy did, not then lapse, and the defendant made no false pretence in represent- ing it to be in full force ; and, further, that as at the time when Vellam paid the premium in 1884 he knew that the days of grace had ex- pired, the defendant did not obtain the amount from him on the false pretences alleged in the indictment. Reg. v. Powell, 54 L. J., M. C. 26 ; 51 L. T. 713 ; 49 J. P. 183 ; 15 Cox, C. C. 568— C. C. K. Proof that Goods or Koney parted with on Taith of Pretence.] — On an indictment for obtaining goods by false pretences, the false pretence charged and proved being that the prisoner was daughter of a lady of the same name, residing at a certain place, there being no evidence that the goods were not delivered to the prisoner before her name and address were asked for : — Held, that there was no sufficient evidence to sustain the indictment, it being essential on a prosecution for obtaining goods by false pretences to prove that the goods were delivered on the faith of the false pretence charged. Reg. v. Jaws, 50 L. T. 726 ; 48 J. P. 616 ; 15 Cox, C. C. 475— C. C. E. H. offered drapery stock to E. for a sum, stating it was all right, and not encumbered, and E. paid the money and took possession. It was discovered that a third party held a bill of sale for double the sum paid, and he entered and seized the stock. H. being indicted for obtaining money under false- pretences : — Held, by Cole- ridge, C. J., Pollock, B., and Lopes, J; (diss. Denman and Manisty, J. J.) that the conviction must be quashed, inasmuch as it did not suffi- ciently appear that the money was parted with in consequence of the false pretence. Reg. v. Sazzlewood, 48 J. P. 151— C. C. E. The prisoner went to the house of the prose- cutrix and requested to be taken in as a lodger. After having lodged with her for a day or two, he stated that he had come from another lodging where he had left some of his clothes, and re- quested to be furnished with board as well as lodging, for which he promised to pay. The prosecutrix, believing his statement as to his clothes, agreed to supply him, and did supply him, with meat and drink as a boarder. A few days after the prisoner decamped without pay- ing for his accommodation. At the trial of an indictment for obtaining goods by false pretences the jury were directed that they must be satisfied that the pretence was false ; that it was acted on by the prosecutrix in supplying the articles in question ; and that it was made by the prisoner with intent to defraud. The jury having found a verdict of guilty, the question was reserved for the court, whether upon the facts the prisoner was entitled to an acquittal: — Held, that the direction was substantially accurate ; that upon the evidence the jury might fairly infer that the prosecutrix had acted on what she believed ; and that from the facts stated it was to be inferred that the jury meant she so acted because she believed to be true, the statement of- the prisoner, which was in fact false. Reg. v. Bur- ton, 54 L. T. 765 ; 16 Cox, C. C. 62— C. C. E. Obtaining Credit by — Sufficiency of Indictment — Benewal of Bill of Exchange.] — In an indict- ment for incurring a debt or liability whereby credit was obtained under false pretences or by means of fraud under s. 13, sub-s. 1, of the Debtors Act, 1869, it is unnecessary to specify the false pretences or fraud under or by means of which the credit was obtained, s. 19 of the Act rendering it sufficient to state the substance of the offence in the words of the Act, or as near thereto as circumstances admit. The renewal of a bill of exchange obtained under false pretences or by means of fraud is an incurring a debt or liability whereby credit is obtained within the meaning of sub-s. 1 of s. 13 of the Debtors Act, 1869. Reg. v. Pierce, 56 L. J., M. C. 85 ; 56 L. T. 532 ; 51 J. P. 790 ; 16 Cox, C. C. 213— C. C. E. Venue.] — H. wrote and posted at N. in Eng- land a letter, addressed to G. at a place out of England, containing a false pretence, by means of which he fraudulently induced G. to transmit to N. a draft for 150?. which he there cashed : — Held, by the court, that there was jurisdiction to try H. at N., that the pretence was made at N., where also the money obtained by means of it was received. Reg. v. Holmes, 12 Q. B. D. 23 ; 53 L. J., M. C. 37 ; 49 L. T. 540 ; 32 W. E. 372 ; 15 Cox, C. C. 343— C. C. E. Contract Induced by — Conviction — Revesting of Property — Sale in Market overt.] — The owner of goods, induced by fraud, parted with them under a voluntary contract of sale which vested the property in the fraudulent purchasers. The goods were then sold in market overt to a pur- chaser without notice of the fraud. The fraudu- lent purchasers were aiterwards, upon the prose- cution of the original owner, convicted of obtain- ing the goods by false pretences. The judge before whom the prisoners were tried refused to make an order of restitution : — Held, that under 24 & 25 Vict. c. 96, s. 100, the property in the goods revested in the original owner upon con- viction, and that he was entitled to recover them from the innocent purchaser. Moyce v. Nevying- ton (4 Q. B. D. 32) overruled. Bentley v. Vil- mont, 12 App. Cas. 471 ; 57 L. J., Q. B. 18 ; 57 L. T. 854 ; 36 W. E. 481 ; 52 J. P. 63— H. L. (E.). 13. FALSIFICATION OF ACCOUNTS. Making and concurring in making False Entry — False Uemorandum copied into Cash- book.] — B., a collector in the employment of N., 573 CEIMTNAL LAW— O/enccs. 674 collected on the 22nd February from Sheppard 81. lis. lOd. due to N. The ordinaiy course of business was for B., at the end of each day, to account to E., N.'s cash clerk, for moneys col- lected during the day, E.'s duty being to enter payments accounted for by B. in the cash-book. On the evening of the 22nd February B. gave B. a slip of paper on which he had written, " Shep- pard, on account, 5Z.," which B. copied into the cash-book, believing it represented the whole amount collected by B. from Sheppard : — Held, that B. was rightly convicted under s. 1 of the Falsification of Accounts Act, 1875. Heg. v. Butt, 51 L. T. 607 ; 49 J. P. 233 ; 15 Cox, 0. C. 564— C. C. E. 14. FELONY AND FBLONS. Death caused by Act done in Committing Telony.] — Ste Reg. v. Seme, post, col. 579. Indictment for Compounding — ^Who may be guilty of.] — An indictment for compounding a felony need not allege that the defendant de- sisted from prosecuting the felon. The ofEence of compounding a larceny may be committed by a person other than the owner of the goods stolen or a material witness for the prosecution. Beg. V. Bm-gess, 16 Q. B. D. 141 ; 55 L. J., M. C. 97 ; 53 L. T. 918 ; 34 W. R. 306 ; 50 J. P. 520 ; 15 Cox, C. C. 779— C. C. R. • Action whether maintainable where Felony disclosed.] — In an action for the seduction of the plaintiff's daughter a paragraph of the state- ment of claim alleged that the defendant ad- ministered noxious drugs to the daughter for the purpose of procuring abortion : — Held, that the paragraph could not be struck out as disclosing a felony for which the defendant ought to have been prosecuted, inasmuch as the plaintiff was not the pereon upon whom the felonious act was committed, and had no duty to prosecute. Ap- plehy V. Franklin, 17 Q. B. D. 93; 55 L. J., Q. B. 129 ; 54 L. T. 135 ; 34 W. R. 231 ; 50 J. P. 359— D. Action by Felon — Effect of Felony on acijuir- ing Property.] — A testatrix by her will, dated in Jtdy, 1869, devised and bequeathed all her real and personal estate to T. K. in trust for her sister M. C. for life, and after her decease upon trust to pay to or permit H. C. D. to receive the interest for his liJEe, but if he should become bankrupt, or publicly insolvent, or should com- pound with his creditors, or should assign or incumber his interest under the trust, or any part thereof, or should otherwise by his own act, or by operation of law, be deprived of the abso- lute personal enjoyment of the same interest, or any part thereof, then, and in either of such cases, the trust in favour of H. C. D. should be void, and T. K. should thenceforth apply the interest for the maintenance, education, and support of the children of H, C. D. The testatrix died in 1871, and M. C. died in 1881. In July, 1878, H. C. D. was convicted of felony, and sentenced to ten years' penal servitude. Before the expira- tion of his sentence he obtainedaticket-of -leave, and commenced this action for the administra- tion of the estate of testatrix, and claimed the arrears of interest ; — Held, that, under s. 30 of the Act 33 & 34 Vict, c. 23, he could commence the action. Held, also, that he had not been deprived of the actual enjoyment of the life interest by any operation of law ; and that he was entitled to all arrears of interest. Bash, In re, Barley v. Xing, 57 L. T. 219— Chitty, J. 15. FORGBRY. Uttering Bonds Beeeived Abroad by Post — Sealing with Proceeds in England.] — A com- pany in Brussels received on 4th January a letter from N. & Co., a firm in London, containing a number of foreign bonds for negotiation. , They accordingly on the 5th January sent to N. & Co., by post a cheque for 1,500Z. On 6th January the cheque was paid into a bank in London by T., the only person known at N. & Co.'s offices, to the account of N. & Co. ; and on 7th January cheques drawn by N. & Co. were presented at such bank by T., who received 1,4952. in respect thereof. On the 12th January F., who was an associate of T., endeavoured to telegraph, under an assumed name, a sum of money from London to Stockholm, but was too late to do so. Upon an indictment which charged F. and T. with having forged and uttered the bonds with intent to defraud : — Held, that it was a question for the jury whether there was sufficient evidence of the forged bonds having been posted in this country ; and that, if they were satisfied that there was sufficient evidence, they could find both the prisoners guilty of uttering the forged bonds upon the indictment. Jteg. v. Finhelstein, 16 Cox, C. C. 107— Com. Serj. Effect of Forged Transfer of Stock.] — See ante, col. 389. Effect of forged Certificates of Shares.] — See ante, col. 394. 16. LARCENY AND RECEIVERS. Water in Pipes, whether the Subject of.] — Water supplied by a water company to a con- sumer, and standing in his pipes, may be the subject of larceny at common law. Ferens v. O'Brien, 11 Q. B. D. 21 ; 52 L. J., M. C. 70 ; 31 W. R. 463 ; 47 J. P. 472 ; 15 Cox, C. C. 332 — D. " Taking " — Automatic Box — Dropping in Disc instead of Penny.] — Against the wall of a public passage was fixed what is known as an "automatic box," the property of a company. In such box was a slit of sufficient size to admit a penny piece, and in the centre of one of its sides was a projecting button or knob. The box was so constructed that, upon a penny piece being dropped into the slit and the knob being pushed in, a cigarette would be ejected from the box on to a ledge which projected from it. Upon the box were the following inscriptions : " Only pennies, not half -pennies ;" "To obtain an Egyptian Beauties cigarette place a penny in the box and push the knob as far as it will go." The prisoners went to the entrance of the pas- sage, and one of them dropped' into the slit in the box a brass disc about the size and shape of a penny, and thereby obtained a cigarette, which he took to the other prisoners : — Held, that the prisoners were guilty of larceny. Reg. v. Hands, 56 L. T. 370 ; 52 J. P. 24 ; 16 Cox, C. C. 188— C. 0. R. 575 CEIMINAL LAW— Offences. 576 Taking invito domino — Delivery of Chattel under common Mistake.] — The prisoner asked the prosecutor for the loan of a shilling. The prosecutor gave the prisoner a sovereign believ- ing it to he a shilling, and the prisoner took the coin under the same belief. Some time afterwards he discovered that the coin was a sovereign, and then and there fraudulently appropriated it to his own use. The prisoner was convicted of larceny of the sovereign: — Held, that the pri- soner had not been guilty of larceny as a bailee ; but the Court being equally divided as to whether the prisoner had been guilty of larceny at common law, the conviction stood. JReg. v Ash- well, 16 Q. B. D. 190 ; 55 J. J., M. 0. 65 ; 53 L. T. 773 ; 34 W. E. 297 ; 50 J. P. 181 ; 16 Cox, 0. C. 1— C. C. E. The old rule of law that the innocent receipt of a chattel, coupled with its subsequent frau- dulent appropriation, does not amount to larceny, is not affected by the decision in Reg. v. Ashwell, supra. That case distinguished and discussed. Beg. V. Flowers, 16 Q. B. D. 648 ; 55 L. J., M. C. 179 ; 54 L. T. 547 ; 34 "W. R. 367 ; 50 J. P. 648 ; 16 Cox, C. C. 33—0. C. E. By Trick — Ringing the Changes.] — The two prisoners by a series of tricks fraudulently induced a bai-maid to pay over money of her master to them, without having received from them in return the proper change ; the barmaid had no authority to pay over money without receiving the proper change, and had no inten- tion of or knowledge that she was so doing : — Held, that the prisoners were properly convicted of larceny. Reg. v. Hollis. 12 Q. B. D. 25 ; 53 L. J., M. C. 38 ; 49 L. T. 572 ; 82 W. E. 372 ; 48 J. P. 120 ; 15 Cox, C. C. 345— C. C. E. Money deposited to abide event of Wager.] — The prisoner was at a race-meeting offering to lay odds against different horses. He made a bet with the prosecutor laying odds against a particular horse, and the money for which the prosecutor backed the horse was deposited with the prisoner. The prosecutor admitted that he would have been satisfied if he did not receive back the same coins. The horse won, but the prisoner went away with the money, and afterwards when the prosecutor met him he denied that he had made the bet. The prisoner was convicted of larceny, and a case was reserved, the question being whether there was any evidence to be left to the jury : — Held, that as it appeared that the prosecutor parted ■with his money with the intention that in the event of the horse winning it should be repaid, while the prisoner obtained possession of the money fraudulently, never intending to repay it in any event, there was no contract by which the property in the money could pass, and there- fore there was evidence of larceny \>y a trick. Reg. f. Bucltmaster, 20"Q. B. D. 182 ; 57 L. J., M. C. 25 ; 57 L. T. 720 ; 86 W. E. 701 ; 52 J. P. 358 ; 16 Cox, C. C. 339— C. C. E. By Bailee — Fraudulent Conversion — Evidence of Intent,] — Prisoijer, a travelling watchmaker, on two separate occasions received from different persons watches which he was to repair. One of the watches was pledged by the prisoner in November, 1886, and the other before Christmas in that year. Upon pledging the first watch the prisoner stated that he only wanted the money for which he pledged it temporarily. And upon pledging the second watch, he requested the person with whom he pledged it not to part with it, as it was not his property. Upon an indictment under 24 & 25 Vict. c. 96, s. 3, for the fraudulent conversion of the watches by the prisoner while a bailee thereof : — Held, that there was some evidence of a fraudulent con- version, i.e., an intention on the part of the prisoner to deprive the prosecutors permanently of their property, there being no evidence that any effort had been made by the prisoner to redeem the watches ; and he never having shown any intention beyond the statements referred to, of so doing. Reg. v. Wynn, 56 L. T. 749 ; 52 J. P. 55 ; 16 Cox, C. 0. 231— C. C. E. Infant, Bailment to.] — An infant over fourteen years of age fraudulently converted to his own use goods which had been delivered to him by the owner under an agreement for the hire of the same : — Held, that he was rightly convicted of larceny as a bailee of the goods under 24 & 25 Vict. c. 96, s^ 3. Reg. v. McDonald, 15 Q. B. D. 323 ; 52 L. T. 583 ; 33 W. E. 735 ; 49 J. P. 695 ; 15 Cox. C. C. 757— C. C. E. Bailment of Money.] — ^A prisoner was convicted of larceny under the following cir- cumstances : — The prosecutor gave a mare of his into the care of the prisoner, telling him that it was to be sold on the next Wednesday. On the next Wednesday the prosecutor did not go himself to sell his mare, but sent his wife, who went to where the prisoner was and saw him riding the mare about a horse fair, and seU her to a third party, and receive On such sale some money. The prosecutor's wife after such sale asked the prisoner to give her the money, saying she would pay his expenses. This the prisoner declined to do, and eventually he absconded with the money and without accounting :— Held (Stephen, J., dissenting), that there was evidence that the prisoner was a bailee of the money thus paid to him, and that the conviction could be supported. Reg. v. Bcmhs, 13 Q. B. D. 29 ; 53 L. J., M. 0. 132 ; 50 L. T. 427 ; 32 W. E. 722 ; 48 J. P. 470 ; 15 Cox, C. 0. 450-0. 0. E. See also Reg. v. Ashwell, supra. Fraudulent Appropriation by Agents, Brokers, and Trustees.] — See ante, cols. 568, 569. Receiving Stolen Goods— Fvidence — Guilty Knowledge.] — Upon the trial of a, prisoner for receiving stolen property with a guilty know- ledge, evidence was admitted that shortly before the stealing of the property in question he had been in possession of other stolen property of a similar character, though he had parted with the possession of such other property before the date of the stealing of the property charged in the indictment :— Held, that such evidence was in- admissible, and did not fall within the words of s. 19 of the Prevention of Crimes Act, 1871. Reg. V. Carter, 12 Q. B. D. 522 ; 53 L. J., M. C. 96 ; 50 L. T. 432, 596 ; 32 W. E. 663 ; 48 J. P. 456 ; 15 Cox, 0. 0. 448-0. C. E. Account given by Prisoner — Evidence to Negative.] — On an indictment for receiving 577 CRIMINAL 1.AW— Offences. 578 goods, knowing them to have been stolen, the prisoner's account being that he had purchased them of a tradesman in the same town, other circumstances in the case tending to negative it, though the tradesman was not called for the prosecution : — Held, that it was not necessary to call him on the part of the prosecution, there being other circumstances in the case from which the jury might fairly infer the false- hood of the prisoner's story. Beg. v. Ritson, 50 L. T. 727 ; 48 J. P. 630'; 15 Cox, C. C. 478— C. C. E. Bestitution Order — Proceeds — Jurisdiction. ] — The court before whom a person charged with larceny is tried has juiisdiction, under 24 & 25 Vict. c. 96, s. 100, on his conviction to order restitution to the original owner of the proceeds of the stolen property in the hands of the con- vict or his agent. Iteg. v. Central Oi'iminal Court JJ., 18 Q. B. D. 314 : 56 L. J., M. C. 25 ; 56 L. T. 352 ; 35 W. R. 243 ; 51 J. P. 229 ; 16 Cox, C. C. 196— C. A. Sevesting of Property — Sale in Market Overt to innocent Purchaser.] — The owner of goods, induced by fraud, parted with them under a voluntary contract of sale which vested the property in the fraudulent pm-chasers. The goods were then sold in market overt to a purchaser without notice of the fraud. The fraudulent purchasers were afterwards, upon the prosecution of the original owner, convicted of obtaining the goods by false pretences. The judge before whom the prisoners were tried refused to make an order of restitution : — Held, that under 24 & 25 Vict. c. 96, s. 100, the pro- perty in the goods revested in the original owner upon conviction, and that he was entitled to recover them from the innocent purchaser. Moyce v. Newington (4 Q. B. D. 32) overruled. Bentley v. VUmont, 12 App. Gas. 471 ; 57 L. J., Q. B. 18 ; 57 L. T. 854 ; 36 W. R. 481 ; 52 J. P. 68— H. L. (E.). Sale in Market Overt — Stolen Goods.] — The defendants were public sales-masters, and trans- acted their business in a legally established cattle market, where a market overt for the sale of cattle and sheep was held once a week. A number of sheep, which had been stolen from the plaintiff, were brought on a market day to the stand of the defendants by the thief, who employed the defendants to sell the sheep for him. The defendants, in ignorance of the theft, placed the sheep in their stand, and sold and delivered them to a purchaser, by whom they were re- moved : — Held, that the defendants were liable to the plaintiff in an action of trover for the value of the sheep. Delaney v. Wallis, 13 L. E., Ir. 31 ; 15 Cox, C. C. 525— C. A., and see preceding case. Goods purchased with Stolen Money.] — The ■plaintiff had stolen money of the defendant and was prosecuted by him for so doing, but was acquitted on a technical ground. The plaintiff had, previously to the prosecution, converted the money into goods. These were in the house of the prosecutor, and detained by him as being the proceeds of the money stolen by him. The plaintiff brought an action in the county court for return of some of the goods and for damages for the conversion of others of them :-^Held, that the county court judge was right in giving judgment for the defendant. Cattley v. Loundes, 34 W. E. 139- D. 17. LIBEL. — See Depamatjon, 18. LUNATICS, ILL-TEEATMENT QV.—See post, col. 583. 19. MISDEMEANOUES. Obstructing Coroner — Burning Dead Body.] — It is a misdemeanour to burn or otherwise dis- pose of a dead body, with intent thereby to prevent the holding upon such body of an intended coroner's inquest, and so to obstruct a coroner in the execution of his duty, in a case where the inquest is one which the coroner has jurisdiction to hold. Reg. v. Stephenson, 13 Q. B. D. 331 ; 53 L. J., M. C. 176 ; 52 L. T. 267 ; 33 W. R. 44 J 49 J. P. 486— C. C. E. To burn a dead body, instead of burying it, is not a misdemeanour, unless it is so done as to amount to a public nuisance. If an inquest ought to be held upon a dead body, it is a misdemeanour to dispose of the body so as to prevent the coroner from holding the inquest. Reg. V. Prij>e, 12 Q. B. D. 247 ; 53 L. J., M. 0. 51 ; 33 W. E. 45 n. ; 15 Cox, C. C. 389— Stephen, J. 20. MUEDEE, MANSLAUGHTEE, AND OFFENCES AGAINST THE PERSON. a. murder and Hanslaug'hter. Agreement to Commit Suicide.] — If two persons enter into an agreement to commit suicide together, and the means employed to produce death prove fatal to one only, the survivor is guilty of murder. Reg. v. Jessop, 16 Cox, C. 0. 204— Field, J. Reasonable Belief of Necessity.] — Under circumstances which might have induced the belief that a man was cutting the throat of his wife, their son shot and killed his father. On the trial of the son for murder : — Hold, that if the accused had reasonable grounds for believing and honestly believed that his act was necessary for the defence of his mother, the homicide was excusable. Reg. v. Rose, 15 Cox, C. C. 540 — Lopes, J. Extreme Necessity.] — A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder ; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life. At the trial of an indictment for murder it appeared, upon a special verdict, that the prisoners D. and S., seamen, and the deceased, a boy between seventeen and eighteen, were cast away in a storm on the high seas, and compelled to put into an open boat ; that the boat was drifting on the ocean, and was probably more than 1,000 miles from land ; that . on the eighteenth day. when they had been seven days without food U 579 CRIMINAL LAW— 0/mces. 580 and five without water, D. proposed to S. that lots should he cast who should be put to death to save the rest, and that they afterwards thought it would be better to kill the boy that their lives should be saved ; that on the twentieth day D., with the assent of S., killed the boy, and both S. and D. fed on his flesh for four days ; that at the time of the act there was no sail in sight nor any reasonable prospect of relief ; that under these circumstances there appeared to the prisoners every probability that unless they then or very soon fed upon the boy, or one of them- selves, they would die of starvation : — Held, that upon these facts, there was no proof of any such necessity as could justify the prisoners in killing the boy, and that they were guilty of murder. Reg. V." Dudley, 14 Q. B. D. 273, 560 ; 54 L. J., M. C. 32 ; 52 L. T. 107 ; 33 W. E. 347 ; 49 J. V. 69 ; IB Cox, C. C. 624— C. C. R. Death caused by Act known to he dangerous to Life.] — If a person causes death by an act known to be in itself eminently dangerous to life he is guilty of murder. Reg. v. Seme, 16 Cox, C. C. 311— Stephen, J. Death caused hy Act done in committing Felony,] — Qusere, whether the rule, that an act done in the commission of a felony which causes death is in all oases murder, is not stated too broadly ; and whether it should not be confined to felonious acts dangerous to life. li. Ualice Aforethought — Drunkenness.] — To do an act with malice aforethought means to do a cruel act voluntarily ; and anybody who inten- tionally inflicts grievous bodily harm on another, intending to do bodily harm, is guilty of murder if he causes death. The intention of the party guilty of murder being an element of the crime itself, the fact that a man was intoxicated at the time he caused the death of another may be taken into consideration by the jury in considering whether he formed the intention necessary to constitute the crime of murder. Reg. v. Do- herty, 16 Cox, C. C. 306— Stephen, J. Manslaughter — Negligence. ] — Manslaughter by negligence occurs when a person in doing anything dangerous in itself, or having charge of anything dangerous in itself, conducts himself in regard to it in such a careless manner as to be guilty of culpable negligence. lb. Neglect of Duty — ^Refusal of Uedical Assistance.] — The law imposes upon relieving officers the duty and obligation, in cases where bonS. fide applications are made to them for medical assistance by destitute persons in cases of sudden and urgent necessity, to give such assistance promptly, so that the mischief may be dealt with at an early stage. Where an applica- tion is made to a relieving officer for medical assistance in a case of emergency, and death or bodily harm results from a refusal to grant such assistance, it is no answer to an indictment against the relieving officer for manslaughter or for causing bodily harm that the applicant was In employment for wages or other hire or remuneration, if at the time the application was made the applicant was, in fact, destitute of the means of providing independent medical assist- ance. Reg. V. Curtis, 15 Cox, C. C. 746— Hawkins, J. Evidence of other Deaths with same Symptoms — Accident or Design.] — F. and H. were jointly charged upon an indictment for the murder of the husband of H., with causing his death by the administration of arsenic. Evidence having been given that the deceased had died from arsenic, and had been attended by the prisoners : — Held, that it was compe^tent for the prosecution to tender evidence of other cases of persons who had died from arsenic, and to whom the prisoners had access, exhibiting exactly similar symptoms before death to those of the case under consideration, for the purpose of showing that this particular death arose from arsenical poison- ing—not accidentally taken, but designedly ad- ministered by someone. Such evidence, however, is not admissible for the purpose of establishing motives : though the fact that the evidence offered may tend indirectly to that end is no ground for its exclusion. The true principle on which the admissibility of all such evidence rests is that laid down in Reg. v. Geering (18 L. J., M. C. 215). Reg. v. Winslow (8 Cox, C. C. 397) com- mented on and disapproved. Reg. v. Flannagan, 15 Cox, C. C. 403— Butt, J. b. Offences ag'ainst Women and Children. Bape— Consent ohtained by Fraud.] — Where a married woman consented to the prisoner having connexion with her under the impression that he was her husband : — Held, that the prisoner was guilty of rape. Reg. v. Barrow (1 L. E., C. C. 156) not followed. Reg. v. Dee, 14 L. E., Ir. 468 ; 15 Cox, C. C. 579— C. C. E. And see now 48 & 49 Vict. c. 69, s. 4. Attempt to Commit — Evidence of pre- vious Connexion.] — On the trial of an indict- ment charging an assault with intent to rape, if the prosecutrix, in answer to cross-examination, denies having voluntarily had connexion with the prisoner prior to the alleged assault, evidence to contradict her by proving such prior con- nexion is admissible on his behalf. Reg. v. Riley, 18 Q. B. D. 481 ; 56 L. J., M. C. 52 ; 56 L. T. 371 ; 35 W. R. 382 ; 16 Cox, C. C. 191— C. C. E. Abduction of Child — Evidence.] — The pri- soner, being indicted under the 24 & 25 Vict. c. 100, s. 56, for that she did, feloniously and unlawfully, by fraud, detain a child, under the age of fourteen, with intent to deprive the mother of the possession of her — the evidence being that the child had been in the service of the prisoner, and was missing and could not be discovered ; and that she gave different accounts of what had become of the child, but implying that the pri- soner had given her up to some third persons ; and there being no evidence that the child was still in her actual custody, nor, indeed, any evi- dence where she was : — Held, that upon the principle of Jiynes v. Dowle (9 M. & W. 19), the prisoner was rightly convicted ; because, whether her stories were all utterly false, and the child was secreted by herself, or whether they were so far true, and the child was in the actual custody of some third parties, to whom she had wrong- fully delivered her, it was equally true that she unlawfully detained the child by fraud. Reg. V. Johnson, 50 L. T. 769 ; 48 J. P. 759 : 15 Cox, C. C. 481— C. C. B. 581 CEIMINAL LAW— 0/ences. 582 Abduction of Girls under Eighteen — "Taking or causing to be taken."] — Where a girl, under the age of eighteen, has not been taken agsiinst her will out of the possession of her father or mother, or of the person having the lawful care or charge of her, it is necessary, in order to convict a person charged with an offence under s. 7 of the Criminal Law Amend- ment Act, 1885 (48 and 49 Viot. c. 69), in respect •of such girl, to prove that the girl left such possession in consequence of persuasions, induce- ments, or blandishments held out to her by the prisoner. Reg. v. SenJters, 16 Cox, C. C. 2.57 — Com. Serj. Knowledge of Prisoner.] — Where a per- son is charged with abducting a girl under eighteen, it is a suGBcient defence if at the moment of taking her out of lawful custody he had reason- able cause to believe that she was of the age of eighteen, though he did not inquire as to her age until after he had taken her out of such lawful custody, but before abduction was complete. Beg. V. Packer, 16 Cox, C. C. 57— Pollock, B. Possession of Father.] — It is a question for the jury whether at the time of the alleged abduction the girl was in the possession of her father. Reg. v. Maoe, 50 J. P. 776— Grant- ham, J. Upon an indictment under 48 & 49 Vict. c. 69, ■s. 7, for taking or causing to be taken a girl out of the possession of her father, it was proved that at the time the alleged offence was com- mitted the girl was employed as a barmaid at a distance from her father's house : — Held, that she was under the lawful charge of her employer, and not in the possession of her father, and that, therefore, the prisoner could not be convicted of the offence with which he was charged. Reg. v. HenJters, supra. TTnlawful Intercourse with Girl under Four- teen — Evidence of Prisoner on Oath.] — A pri- soner was charged under 48 and 49 Viet. c. 69, s. 5, VTith having had unlawful intercourse with a girl under the age of fourteen. When before the justices, he gave evidence on oath :— Held, that at the trial his statement, as made on oath, might be put in without his consent, and might be used for or against him ; and that on the charge above mentioned, the prisoner might be found guilty of an attempt to commit the offence, the case being within the provisions of the 14 & 15 Viet. c. 100, ti. 9. Reg. v. Adams, 50 J. P. 136— Stephen, J. indictment for carnally knowing Girl under Thirteen — TTnswom Evidence — Conviction for Indecent Assault.] — The prisoner was indicted under the Criminal Law Amendment Act, 1885 (48 and 49 Vict. c. 69), s. 4, for unlawfully and carnally knowing a girl under the age of thirteen years. The child, not understanding the nature of an oath, gave her evidence under the above section without being sworn. The j ury acquitted the prisoner of the charge under s. 4, but, by virtue of the power given to them in s. 9, found him guilty of an indecent assault. Apart from the girrs testimony the evidence was insufficient to support the conviction. The act contains no provision rendering unsworn evidence admissible on an indictment for indecent assault : — Held, that the conviction was right. Reg.y. Wealand, 20 Q. B. D. 827 ; ■ 585 CEIMINAL l.A'W— Offences. 586 justify a conviction. — The respondent gathered mushrooms in a field belonging to the appellant. They were of value to the latter, but they grew spontaneously, and were entirely uncultivated. No damage was done by the respondent to the -grass or the hedges : — Held, that, upon the above facts, the respondent had not been guilty of an ■offence within s. 52 of the act. Gardner v. Mansbridffc, 19 Q. B. D. 217 ; 57 L. T. 265 ; 35 W. R. 809 ; 51 J. P. 612 ; 16 Oox, C. C. 281— D. OTeThanglng Tree — Catting off Blos- som.] — B.'s chestnut tree overhung his land, and also part of the highway immediately in front of H.'s grounds, and boys threw stones at the blos- soms, which broke H.'s windows :— Held, that H. was properly convicted, under 24 & 25 Viet. •c. 97, s. 52, for wilfully damaging B.'s tree by cutting off the blossoms at the top of the tree, -and that H. showed no claim of right or other legal defence for the trespass. Hamilton^. Bone, 52 J. P. 726— D. Conspiracy and Protection of Property,] — An intimation conveyed in a letter to an em- ployer that his shop would be picketed, in lan- guage so threatening as " to make such employer afraid," amounts to " intimidation " within the meaning of s. 7, sub-s. 1, of the Conspiracy and Protection of Property Act, 1875 ; whether the picketing amounts to an unlawful^ watching or besetting within sub-s. 4 or not. nett, 36 W. E. 103 ; 52 J. P. 257— D, 24. RAILWAYS. Trespassing on.] — See Railway. 25. RAPE AND OFFENCES AGAINST WOMEN AND CHILDREN.— &c supra, 20, J. 26. SANITARY LAWS.— &<> Health. 27. SEDITION. Seditious Libel— Intent — Question for Jury.] — An intention to excite ill-vrill between different claBses of her Majesty's subjects may be a sedi- tious intention ; whether or not it is so in any particular case, must be decided upon by the jury after taking into consideration all the cir- cumstances of the case. Sedition embraces everything, whether by word, deed, or writing, which is calculated to disturb the tranquillity of the state, and lead ignorant persons to endeavour to subvert the government and laws of the empire. Reg. v. Bv/rns, 16 Cox, C. C. 355 — Cave, J. Natural Consequences of Words Spoken — Assisting at Meeting.] — Where in a prosecution for uttering seditious words with intent to incite to riot, it is proved that previously to the hap- pening of a riot seditious words were spoken, it is a question for the jury whether or not such rioting was directly or indirectly attributable to the seditious words proved to have been spoken. A meeting lawfully convened may become an unlawful meeting if during its course seditious words are spoken of such a nature as to produce a breach of the peace. And those who do any- thing to assist the speakers in producing upon the audience the natural effect of their words will be guilty of uttering seditious words as well as those who spoke the words. IT). 28. TREASON-FELONY. Purpose of Instrument — Evidence — Burden of Proof.] — D. and others were charged under the Treason-Felony Act, 11 & 12 ¥iot. c. 12, s. 3, with being in the possession of certain in- struments and explosive materials, with intent to use them for the purpose of carrying out the objects of certain treasonable combinations exist- ing in the United Kingdom and abroad : — Held, that, for the purpose of showing such intent, evidence might be given showing that the only known use hitherto made of such instriunents and explosive compounds had been in causing destructive explosions to property ; and^that the f aet of some of those explosions having happened out of the jurisdiction of the court did not affect the admissibility of the evidence. Reg. v. Beasy, 15 Cox, C. C. 334— Stephen, J. Held, also, that for the purpose of showing a treasonable object, evidence might be given of the existence, down to a period nearly approach- ing the date of the alleged acts, in the country from which the explosives and instruments were brought, of a treasonable conspiracy having for its object the alteration of the existing form of government by violent means, although such evidence did not establish that the prisoners were members of, or directly connected with, such conspiracy. Though the general rule is that the prosecution must make out intent, there may be circumstances under which the burden of proof is shifted to the other side. li. 29. UNLAWFUL ASSEMBLY. What is.] — See 0' Kelly v. Harvey, sub tit. Justice of the Peace. 30. VAGRANTS AND VAGRANCY.— See Vagrant. III. JTJBISDICTION, PEACTICE AND PBOCEDTTBE. 1. JURISDICTION. Commissions of General Gaol Delivery.] — The general authority given by the commission of general gaol delivery to justices of assize to deliver the gaols of all manner of prisoners found therein, confers no jurisdiction over prisoners directed by statute to be dealt with by the court of general or quarter sessions, though found ■ndthin the prison of the county. A commitment, therefore, of such a prisoner to the assizes will be bad, and will entitle the prisoner to his dis- charge from custody. The effect of the Home Office Circular of March, 1883, on the form of commitments. Reg. v. Ward, 15 Cox, C. 0. 321 — West, Q.C., Commissioner. 587 CRIMINAL LAW — Jurisdiction, Practice, and Procedure. 588 Second Arrest on Same Charge— Bes judicata.] — L. was charged with night poaching under 9 Geo. i, c. 69, and in course of cross-examination of prosecutor's witnesses, the justices considered he had been illegally arrested, and discharged him. L. was again summoned for the same offence on the same facts, when the justices held that they had no jurisdiction, as the former dis- charge was res judicata : — Held, that the justices were right. Beff. v. Bralienridge, 48 J. P. 293 — D. Central Criminal Court— Mandamus.]— Man- damus will not lie to the judges and justices of the Central Criminal Court. The recorder of London, upon the trial and conviction of a pri- soner charged with larceny, having refused to order (under 24 & 25 Vict. c. 96, s. 100) the per- son with whom stolen property was pledged to restore it to the prosecutor, the Queen's Bench Division refused to grant a mandamus directed to " the judges and justices of the Central Criminal Court," to compel the recorder to make such order. Reg. v. Central Oriminal Court JJ., 11 Q. B. D. 479 i 52 L. J., M. C. 121 ; 15 Cox, C. C. 325— D. 2. INDICTMENT. " Against the form of the Statute " — Omission — Corporation.] — An indictment against a corpo- ration, which in the absence of a statute would not be liable to be indicted, for non-repair of a highway, is bad unless it concludes " against the form of the statute," and the objection is fatal even after verdict. Reg. v. Poole (^Mayor'), 19 Q. B. D. 602, 683 ; 56 L. J., M. C. 131 ; 57 L. T. 485 ; 36 W. E. 239 ; 52 J. P. 84 ; 16 Cox, C. C. 323— D. Election Law — Corrupt Practice — Description of OfEence — Aider by Verdict. ] — The prisoner was tried and convicted upon an indictment which alleged that at an election for members of par- liament for the borough of Ipswich, holden on 25th of November, 1885, he was guilty of corrupt practices against the form of the statute in that case made and provided. It was proved at the trial that he had promised money to two voters to induce them to vote. After verdict the objec- tion was taken by the prisoner's counsel that the indictment was bad, because it did not suffi- ciently describe the nature of the ofience with which the prisoner was charged : — Held (by Lord Coleridge, C.J., and Field and Mathew, JJ., Denman and Day, JJ., dissenting), that, if the indictment were defective, the defect was cured after verdict. By Lord Coleridge, C.J., and Denman, Mathew and Day, JJ., the indictment was defective, and on application before verdict might have been quashed. By Denman and Day, JJ., the defect in the indictment was not cured after verdict. By Field, J., semble, the indictment was good by virtue of 26 & 27 Vict, c. 29, s. 6, and 46 & 47 Vict. c. 51, s. 53. Reg. v. Stroulger, 17 Q. B. D. 327 ; 55 L. J., M. C. 137 ; 55 L. T. 122 ; 34 W. R. 719 ; 51 J. P. 278 ; 16 Cox, C. C. 85— C. C. R. An indictment under the Corrupt Practices Act, 1883, which merely charges the defendant with being guilty of a corrupt practice at an election, but does not specifically allege against him what that corrupt practice was, is bad for generality. Reu. v. Norton, 16 Cox, C. C. 59 — Pollock, B. 3. EVIDENCE. Production of fresh Evidence — Effect of.] — The production of fresh evidence on behalf of the prosecution (not known or forthcoming at the preliminary investigation, and not, pre- viously to the trial, communicated to the other side) may be ground for a postponement of the trial, if it appears necessary to justice. Reg. v. Flannagan, 15 Cox, C. C. 403— Butt, J. Confessions — Inducement.] — The prisoners H, and C. were taken into their master's (the prosecutor) room, where there were two police- men. The prosecutor said, " I presume you know who these gentlemen are ? " H. said, " Yes." The prosecutor then said to H., " I know what has been going on between you and C. for some time ; you had better speak the truth." H. then made a confession :— Held, that the confession was not admissible in evidence. Reg. v. HattSf 49 L. T. 780 ; 48 J. P. 248— C. C. E. A confession made by a prisoner at the request of his uncle in the audience of, and according to the advice of a police sergeant, is not admissible in evidence. Reg. v. Jones, 49 J. P. 728 — Manisty, J. Depositions, Admissibility of.] — A deposition taken under 11 & 12 Vict. c. 42, s. 17, was admitted in evidence, though it appeared that the proceedings had been conducted in the English language, and that the prisoner and the deceased understood English imperfectly. li. Notice of Intention to take.] — The 6th section of the 30 & 31 Vict. c. 35, provides in cases of indictable offences for the taking of the statements on oath or affirmation of persons dangerously ill and not likely to recover, and for the reading of the same in evidence iinder certain circumstances, " provided it be proved to the satisfaction of the court (inter alia) that reasonable notice of the intention to take such statement has been served upon the person (whether prosecutor or accused) against whom it is proposed to be read in evidence : — Held (Day, J., dissenting), that the notice intended by the section is a notice in writing, and that such a statement was inadmissible against a prisoner where he had only had oral notice of the intention to take the same, although he was present when the statement was made. Reg. v. Shurmer, 17 Q. B. D. 323 ; 55 L. J., M. 0. 153 ; 55 L. T. 126 ; 34 W. R. 656 ; 50 J. P. 743— C. C. R. Statement of Witness too young to be Sworn.] — On a charge preferred under s. 4 of the Criminal Law Amendment Act, 1885, for carnally knowing a girl under the age of thir- teen yeai-s, the magistrates before whom the preliminary investigation took place, being of opinion that the prosecutrix did not understand the nature of an oath, received as evidence her unsworn statement (as provided for by the 4th section of the act), and signed and returned her statement so made, with the depositions, to the assizes. At the trial it was proposed, after proving that the prosecutrix was so ill as to be 589 CRIMINAL LAW — Jurisdwiion, Practice, and Procedure. 590 unable to travel or to attend to give evidence at the assizes, to tender in evidence her statement so made before the magistrates, as being a depo- sition vfithin the meaning of s. 17 of the 11 & 12 Vict. c. 42 :— Held, that s. 17 of the 11 & 12 Vict, c. 42, only applies to depositions talien upon oath or affirmation, and that, although a false state- ment made under the circumstances of this case might subject the prosecutrix to a prosecution for perjury (as provided for by s. 4 of the Criminal Lavr Amendment Act, 1885), it was not a deposition "taken as aforesaid," — i.e., on oath or affirmation within the meaning of s. 17 of the 11 & 12 Vict. c. 42 — so as to render it admissible as evidence in the absence of the prosecutrix. Reg. v. Pnmtey, 16 Cox, C. C. 344 ^Cave, J. Dying Seclaration — Consciousness of impend- ing Death.]— The deceased, shortly after the wound had been given which caused her death, made a statement, in the prisoner's absence, as to the cause of her injuries. She was in fact dying at the time she made the statement. Two witnesses swore she was conscious at the time. The doctor, who aiTived before she made the statement, swore that she was unconscious from the moment of his arrival, but that there might have been intervals of consciousness before death. The statement was made during the doctor's absence from the room : — Held, that the state- ment was not admissible in evidence as a dying declaration, as it was uncertain whether the deceased was conscious of impending death or in fact conscious at all, at the time she made the statement. Beg. v. Smith, 16 Cox, C. C. 170 — Hawkins, J. Informal.] — A deposition had been made by a deceased person in the presence of a justice and the prisoner, and in expectation of death. It appeared that the several sheets of paper upon which the clerk wrote down the deposition had not been fastened together at the time the jus- tice signed the last sheet, which was the only one he signed : — Held, that though it might not be either a dying declaration or a deposition, the clerk might give the statement in evidence. Beg. V. Mann, 49 J. P. 743 — Denman, J. Privilege of Wituesaes.] — See Evidence. Under Criminal Law Amendment Act, 1889.] — See ante, cols. 581, 582. Admissions — Proceedings against Newspaper Proprietor — Proof of Facts stated therein.] — A confession, admission, or statement, although extra judicial, if made by a person charged with a crime is sufficient without independent proof of the commission of the crime to sustain a con- viction. Where, therefore, it was a crime to publish with a view to promote the objects of an illegal association, a notice of the calling together of any meeting of such association, or of the members of it as such members, or of the proceedings at such meeting, and in proceedings before a magistrate against the proprietor and publisher of a newspaper, a copy of his paper, containing a report of proceedings at a meeting, together with statements which tended to show that the meeting was a meeting of members of the illegal association as such members, was put in evidence, and the magistrate was satisfied that the report and the statement were published with a view to promote the objects of the asso- ciation : — Held, that the newspaper was sufficient evidence against the proprietor and publisher in itself from which the magistrate might infer that such a meeting had been held, and upon which he would have been justified in convicting the defendant. Beg. v. Sullivan, 16 Cox. C. C. 347 — Ir. Ex. D. Of other Offences, when admissible.] — See Beg. V. Stephens, ante, col. 568 ; and Beg. v. Flawnagan, ante, col. 580. Previous Conviction — When to be Proved.] — Where a person is indicted for night poaching after two previous convictions, the previous con- victions should not be proved until the jury find a verdict on the facts of the case. Beg, v. Wood- field, 16 Co?, C. C. 314— Hawkins, J. Disclosure in Compulsory Proceedings — ^Hear- say Evidence — Bumour no Evidence of Know- ledge.] — Evidence of A. that B. had told him that C. had committed an offence, is inadmissible as any evidence whatever of the knowledge of B. as to the fact of C. having committed the offence ; and it is therefore inadmissible as evi- dence of an offence, disclosed by a bankrupt in his examination in bankruptcy, having been dis- closed previously to such examination, so as to disentitle the bankrupt to the protection of the proviso to s. 85 of the 24 & 25 Vict. c. 96. Evi- dence of the fact of a rumour is no evidence of the knowledge of a particular individual, and is not within any of the exceptions to the rule which excludes the reception of hearsav evidence. Beg. V. C/unnell, 55 L. T. 786 ; 51 J. P. 279 ; 16 Cox, C. C. 154— C. C. E. Husband and Wife — Larceny by Wife.] — Upon the trial of a married woman, jointly with another person, for larceny of the property of her husband, the husband was called as a witness against his wife : — Held (Stephen, J., doubting), that the evidence of the husband was im- properly received, and that the conviction which had taken place founded upon it was bad as against both prisoners. Beg. v. Brittleton, 12 Q. B. D. 266 ; 53 L J., M. C. 83 ; 50 L. T. 276 ; 32 W. K. 463 ; 48 J. P. 295 ; 15 Cox, C. C. 431 — C. C. R. Offence against Licensing Laws by Wife.] — S., a wife, was licensed to sell liquors, and her husband told the constable that he took some spirits away to B.'s house, where they were raffled for and then were consumed, and he brought back the proceeds, and put the money in S.'s room, and she duly received it. The justices having convicted S. of selling at B.'s house, not being licensed to do so : — Held, that as S., being a competent witness, did not contra- dict the husband's account, there was some evidence to support the conviction. Seagar v. White, 48 J. P. 436— D. Statement of Wife in presence of Hus- band.] — Upon the trial of a prisoner for feloniously receiving stolen property, a list of the stolen articles which the prisoner, who was a marine store dealer, had bought, was received in evidence, in order to show that he had bought at an under value. The circumstances under which 591 CEIMINAL LAW — Jurisdiction, Practice, and Procedure. 592 the list was wi-itten were as follows : — A police- constable asked the prisoner to consider when he had bought the stolen property, to which the prisoner replied that his wife should make out a list of it, and on the next day the prisoner's wife, in her husband's presence, handed to another constable the list tendered in evidence, saying in lier husband's hearing, " This is a list of what we bought, and what we gave for them." The question reserved was whether such list was pro- jierly admitted in evidence : — Held, by the court, that the list was clearly admissible in evidence. Beg. V. Mallory, 13 Q. B. D. 33 ; 53 L. J., M. C. 134 ; 50 L. T. 429 ; 32 W. K. 721 ; 48 J. P. 487 ; 15 Cox, C. 0. 456— C. C. E. Secondary Evidence — Proof of Destruction — Notice to Produce.] — 0. ordered animals, bought at a market in the county of S., to be forwarded to T., in the county of C. A form of certificate was there given to the drover, who showed it in course of the journey to railway porters and others at two places in the county of C, but it was destroyed by order of 0. On 0. being charged for uttering a false certificate, and notice to produce the original being served: — Held, that the justices at T. were right in receiving secon- dary evidence of the certificate. Oahey v. Stret- ton, 48 J. P. 709— D. Proof of Telegram sent by Prisoner.] — Where in a criminal case it is sought to give in evidence the contents of a telegram sent by the prisoner to a witness, it is absolutely necessary that the original message handed to the post- office should be produced, or proof given that it is destroyed, and the copy received by a witness cannot be given in evidence until it is proved that the original cannot be produced. Reg. v. Bsgan, 16 Cox, C. C. 203— Field, J. Evidence of previous Connexion between Frose- entrix and Prisoner — Sape.] — On the trial of an indictment charging an assault with intent to rape, if the prosecutrix, in answer to cross- examination, denies having voluntarily had con- nexion with the prisoner prior to the alleged assault, evidence to contradict her by proving such prior connexion is admissible on his behalf. Beg. V. Bilcy, 18 Q. B. D. 481 ; 56 L. J., M. C. 52 ; 56 L. T. 371 ; 35 W. B. 382 ; 16 Cox, C. C. 191— C. C. K. Effect of fflisreception of, at Trial.] — In a criminal trial, if any evidence not legally ad- missible against the prisoner is left to the jury, and they find him guilty, the conviction is bad ; and this notwithstanding that there was other evidence before them properly admitted, and sufficient to warrant a conviction. Reg. v. Gibson, 18 Q. B. D. 537 ; 56 L. J., M. C. 49 ; 56 L. T. 367 ; 35 W. E. 411 ; 51 J. P. 742 ; 16 Cox, C. 0. 181— G. C. E. See Beg. v. Srittleton, ante, col. 590. 4. TEIAL. Postponement — Fresh Evidence.] — See Beg. V. Mannagan, ante, col. 588. Venue — Obtaining Credit in Ireland.] — A person may be indicted in England for having, whilst" resident therein, obtained credit uithin the meaning of s. 31 of the Bankruptcy Act, 1883, from a person resident in Ireland at the time such credit was obtained. Beg. v. Peters, 16 Q. B. D. 636 ; 55 L. J., M. C. 173 ; 54 L. T. 545 ; 34 W. E. 399 ; 50 J. P. 631 ; 16 Cox, C. C. 36— C. C. E. Obtaining Honey by False Pretences.]— See Reg. v. Holmes, ante, col. 572. Prisoner's Statement — Defence by Counsel.] — A prisoner, defended by counsel, may make a statement to the juiy, provided he does so before the speech of counsel for the defence. Beg. v. Masters, 50 J. P. 104— Stephen, J. The Prisoners' Counsel Act, 1837, does not deprive prisoners of the right of making a state- ment to the jury in cases of felony ; they may, if they wish to do so, make a statement to the jury before the court is addressed by their counsel, which statement will, however, give the Crown a right of reply. Beg. v. Dokerty, 16 Cox, C. C. 306— Stephen, J. . Counsel — Witness called by Prisoner.] — Upon the trial of a prisoner who is defended by counsel (in accordance with the opinion of the majority of the judges), the prisoner, after his counsel's address to the jury, will be allowed to make a statement of facts to the jury. But when it is proposed to call witnesses for the prisoner, it will not be competent for him to make any statement to the jury in addition to his counsel's address. Beg. v. Millhovse, 15 Cox, C. C. 622— Coleridge, C. J. Bight of Beply — Several Prisoners, some call- ing Witnesses.] — Where several prisoners were indicted jointly, and some of them called wit- nesses, but others did not : — Held, that the Crown had a right of reply to the counsel for those prisoners who called witnesses, but that the counsel for the prisoners who called no vrit- nesses, had a, right to address the jury last. Beg. V. Burns, 16 Cox, C. C. 195— Day and Wills, JJ. Fourmen were indictedfor having assaulted the prosecutor with intent to do him grievous bodily harm ; one of the prisoners called witnesses in his defence to prove an alibi ; no witnesses were called on behalf of the other prisoners. Counsel for the prosecution claimed a general right of reply : — Held, that there was no general right of reply, and that the most convenient course would be for counsel for the prosecution to sum up the case generally, and reply on the evidence called by one prisoner, before the counsel for the other prisoners addressed the jury. Reg. v. Kain, 15 Cox, C. C. 388— Stephen, J. Statement by Prisoner.] — See Beg. v. Doherty, supra. Special Verdict — Jurors' Prayer.] — The con- servators of the river T. having indicted the local board of S., as the rural sanitary authority, for having, in contravention of s. 63 of the Thames Navigation Act, 1866, "caused or, with- out lawful excuse, suffered," sewage matter to flow into the said river T. within their district, in connexion with which certain points of law were necessarily involved : — Held, that the proper course to follow was to take a special verdict (prepared by both sides) from the jury, after formal evidence of the matters alleged in 593 CRIMINAL LAW — Jurisdiction, Practice, and Procedure. 594 the special verdict had been given, and the points of law arising therein should be subsequently discussed by the court. Reg. v. Staines Local Board, 52 J. P. 215— lluddleston, B. Proceedings before Justices.] — Sec Justice OF THE Peace. Fine, Amount of— Fine to be Commensurate with Offence,] — Where, on conviction of a cor- poration upon an indictment removed by certio- rari into the Crown side of the Queen's Bench Division, a fine is to be imposed, the fine is only to be commensurate with the offence committed, and the court in apportioning the fine will not take into consideration the amount of the costs in- cuiTed by the prosecution. Reg. v. London and Xorth Western Railway, 58 L. T. 771 ; 52 J. P. 821— D. Prosecution by Individual — Independent Pro- secution by Police — Costs.] — ^Where the principal person interested in prosecuting a prisoner is desirous of conducting the prosecution, he is entitled to do so, and to be allowed the costs of the prosecution. In a case of aggravated assault by a prisoner on his wife, the wife retained a solicitor to prosecute her husband. In pursuance of this retainer, the solicitor prepared and de- livered a brief to counsel at the assizes with instructions to conduct the prosecution. A con- stable of the county had been bound over by recognizances to prosecute, and the clerk to the magistrates, as was the usual custom, prepared and delivered a brief to counsel to prosecute : — Held, that the conduct of the prosecution should not be taken out of the hands of the person principally interested if that person wished to undertake it. Reg. v. Yates (7 Cox, C. C. 361) distinguished. Reg. v. Bushell, 52 J. P. 136 ; 16 Cox, C. C. 367— Coleridge, C. J. Treasury Prosecution— Local Solicitors — Lia- bility to Account.] — When local solicitors are retained by the Treasury, to conduct prosecutions on their behalf, such local solicitors are agents for the Treasury, and are therefore bound to ac- count to the Treasury for any sums of money received in respect of costs, and to pay over to the Treasury the difference between the sums so received as costs and the sum allowed them on taxation. Parkinson, In re, 56 L. T. 715— D. Costs — Acq.uittal of Defendant — -Order against Public Prosecutor.] — Where a criminal prose- cution has been instituted, undertaken or carried on by the public prosecutor, he stands by virtue of 42 & 43 Vict. c. 22, s. 7, in the same position with regard to costs as a private prosecutor. Where, therefore, upon an indictment preferred in compliance with s. 2 of the Vexatious Indict- ments Act (22 & 23 Vict. c. 17), a true bill is found, and , the prosecution is then undertaken by the public prosecutor, and the defendant is acquitted, the court has power, under 30 & 31 Vict. c. 35, s. 2, to make an order for payment to the defendant of the costs to which he has been put, and in the exercise of its discretion will not be guided by the reasons which induced the public prosecutor to undertake the case. Reg. V. Stubls, 16 Cox, C. C. 219— Recorder of London, 5. BAIL, Contract to Indemnify — Recovery back of Money.] — A contract is illegal, whereby a de- fendant in a criminal case, who has been ordered to find bail for his good behaviour during a specified period, deposits money with his surety upon the terms that the money is to be retained by the surety during the specified period for his own protection against the defendant's de- fault, and at the expiration of that period is to be returned. Herman v. Jeucliner or Zeuclmer, 15 Q. B. D. 561 ; 54 L. J., Q. B. 340 ; 53 L. T. 94 ; 33 W. E. 606 ; 49 J. P. 502—0. A. Ee- versing 1 C. & E. 364— Stephen, .1. 6. EEEOE. Vexatious Indictments Act.] — Error will not lie for non-compliance with the Vexatious Indictments Act. Boalcr v. Reg., 57 L. J., M. C. 85 ; 59 L. T. 554 ; 16 Cox. C. C. 488— D. 7. NEW TEIAL. Indictment for Xon-Repair of Bridge.] — See Way. 8. PRISONEES. Money found on Prisoner not Debt due from Police.] — Money in the possession of a prisoner which is taken possession of by the police upon his apprehension, and retained by them after his conviction, does not render the police debtors to the piisoner, and is not a debt which can be attached under garnishee proceedings. Biee v. Jarvis, 49 J. P. 264— D. Taking Possession of Goods by Police.] — The police have power under a warrant for the arrest of a person charged with stealing goods to take possession of the goods for the purposes of the prosecution. A person therefore is justified in refusing to hand over goods to one claiming to be the owner, if such person has been entrusted with them by the police, who have taken posses- sion of them under such circumstances. Tyler V. London and South Western Railway, 1 C. & E. 285— Huddleston, B. Peace officers when arresting persons under a warrant, are empowered to take and detain evidence of crime, whether the crime charged is treason, felony, or misdemeanour. Dillon v. O'Brien, 20 L. R., Ir. 300 ; 16 Cox, C. C. 245— Ex. D. Habeas Corpus ad Testificandum — Prisoner desiring to argue Case.] — Pending the argument of a case in the Court of Appeal, the appellant, who proposed to appear and argue in person, was sentenced to imprisonment in respect of a charge of libel : — Held, that the court had no power under the circumstances to award a writ of habeas corpus to bring the appellant before the court with a view to her arguing her appeal, as the provisions of 44 Geo. 3, c. 102, had no application to such a case. Weldon y. Mai, 15 Q. B. D. 471 ; 54 L. J., Q. B. 399 ; 33 W. R. 581 -D. Treatment and Confinement of Prisoners in Prison.] — See Peison. 595 CROWN. 596 CROPS. Bills of Sale— Eegistration.] — fke Bills op Sale. CROWN. Prerogative— Execution for Debt— Distress.] — Where claims of the Crown and of a subject as creditors come into competition, the pre- rogative right of the Crown to priority is not limited to proceedings by writ of extent, but equally attaches in proceedings by distress, although the distress put in by the Crown be subsequent in date to that of the subject, pro- vided the distress put in by the subject has not been completely executed by actual sale. Attor- ney-General V. Leonard, ^a Ch. D. 622 ; 57 L. J., Ch. 860 ; 59 L. T. 624 ; 37 W. E. 24— Chitty, J. Debtor to Crown — Priority.] — Letter- receivera were in the habit, with the sanction of the Postmaster-General, of paying moneys received on account of the Post-office into a bank to their private account, together with their own moneys, and of drawing cheques both for their own purposes and for payment to the Post-office. The bank had notice that their customers were letter-receivers, and drew cheques for Post-office purposes. The bank having gone into liquidation : — Held, that the Postmaster-General, on behalf of the Crown, was entitled to payment in priority over other creditors of the bank of the balance due upon the letter- receivers' accounts in respect of Post- office moneys. Rex v. Ward, (2 Ex. 301, n.) followed. West London Commercial Bank, In re, 38 Ch. D. 364 ; 57 L. J., Ch. 925 ; 59 L. T. 296— Chitty, J. Effect of Statute on.]— Section 150 of the Bankruptcy Act, 1883, enacting that, save as therein provided, the provisions of that act relating to the remedies against the property of a debtor, the priorities of debts, the effect of a composition or scheme of arrangement, and the effect of a discharge, shall bind the Crown, does not by virtue of the Judicature Act, 1875, s. 10, operate as an incorporation in the Companies Act, 1862, of a similar provision so as in a winding-up to bar the Crown of its prerogative of priority of payment over all creditors. Oriental Banli Corporation, In re. The Crown, Ex parte, 28 Ch. D. 643 ; 54 L. J., Ch. 327 ; 52 L. T. 172— Chitty, J. The Victorian Statute, Crown Liability and Kemedies Act, 1865 (28 Vict. No. 241), s. 17, does not affect the prerogative of the Crown •when suing in this country. lb. See Mxcliange Banli of Canada v. Reg., ante, col. 323. Disclaimer binding on Crown.] — The pro- visions of s. 55 of the Bankruptcy Act, 1883, as to the disclaimer of onerous property, are " pro- visions relating to the remedies against the property of a debtor" within the meaning of s. 150 of that Act, and are therefore binding upon the Crown. Commissioners of Woods and Forests, Ex parte, Thomas, In re, or TliomaSy Ex parte, Trotter, In re, 21 Q. B. D. 380: 57 L. J., Q. B. 574 ; 59 L. T. 447 ; 36 W. R. 735 ^ 5 M. B. E. 209— D. CommiBsioners of Works and Public Buildings, ] —By 18 & 19 Vict. c. 95, the Commissioners of Works and Public Buildings are incorporated and empowered to take land compulsorily for the purpose of building public offices : — Held, that the commissioners do not represent the Crown, Wood's Estate, In re,' Commissioners of Worh* and Public Buildings, Ex parte, 31 Ch. D. 607 ; 55 L. J., Ch. 488 ; 54 L. T. 145 ; 34 W. E. 375— C. A. Lands Clauses Act — Payment out of Court.] — A railway company, under the powers of its act, gave notice to a lord of the manor to take a piece of land on the seashore, which he claimed as part of the waste of his manor. The purchase-money was assessed by arbitration, but an adverse claim having been made by the Crown, the company paid the purchase-money into court under the 76th section of the Lands Clauses Act. The Crown filed an information against the lord of the manor claiming the land, together with other land, as part of the fore- shore. The lord of the manor having filed a petition for payment of the purchase-money to him : — Held, that as the Crown could not be brought before the court under the Lands Clauses Act to contest the claim of the petitionerr the petition ought to stand over till the informa- tion had been heard. Lowestoft {Manor of). In re. Reeve, Ex parte, 24 Ch. D. 253 ; 52 L. J., Ch. 912 ; 49 L. T. 523 ; 32 W. E. 309— C. A. Election Law — Bight of Soldiers to Vote.] — Officers and non-commissioned officers in her Majesty's service had resided in quarters in blocks of barrack buildings. In each block officers of superior rank to the claimants also resided ; the commanding officer occupying a separate dwelling within the barrack enclosure. The claimants' quarters were liable to inspection by superior officers, and the claimants them- selves were subject to many disciplinary regula- tions :— Held, that the appellants were servants of the Crown, and not of their superior officers ; that the Crown, if affected by the Eepresentation of the People Act, 1884, was mentioned therein ; that they were to be deemed inhabitant occupiers of their quarters, and that no person under whom they " served in their office, service, or employ- ment," resided in the same dwelling-house, within the meaning of s. 3 of that act. AtMii- son V. Collard, 16 Q. B. D. 254 ; 55 L. J., Q. B. 18 ; 53 L. T. 670 ; 34 W. E. 75 ; 50 J. P. 23 , 1 Colt. 375— D. And see further, post. Election Law. Waiver of Forfeiture — Proof ot ] — A for- feiture may be waived by the Crown as well as by private individuals, and such waiver may be proved by similar evidence, e.g., by the con- tinued acceptance of the Crown rent in respect of a market after conduct which would give the Crown a, right to forfeit a grant. Middleton {Lord) V. Power, 19 L. E., Ir. 1— V. C. Treasury Prosecution by Local Solicitors — Liability to Account,]— See Parkinson, In re, ante, col. 593. 597 CROWN— CUSTOMS. 598 Sight to grant Fishery to Sabjeot — Exclusion of Owner of Soil.] — The Crown can hold a river- bed throughout a manor and the fishery in the river flowing over the same as parcel of the manor, and may grant the manor with the river- bed and fishery to a, subject, and the subject may grant the banks of the river with reserva- tion of the river-bed and fishery. Devonshire {Duke of}-7. Pattinsmi,, 20 Q. B. D. 263 ; 57 L. J., Q. B. 189 ; 58 L. T. 392 ; 52 J. P. 276— C. A. Bights of Surety— Crown Debt— Priority.] — A. surety to the Crown, who has paid the debt of his deceased principal, is entitled to the Crown's priority in the administration of his principal's estate. Churchill {Lord), In re, Manisty v. Churchill, 39 Ch. D. 174 ; 59 L. T. 697 ; 36 W.E. 805— North, J. Bight to Trial at Bar — Change of Venue.] — By the Crown Suits Act, 1865, s. 46, where in any cause in which the attorney-general is entitled on behalf of the Crown to demand as of right a, trial at bar he states to the court that he waives that right, " the court on the appUoation of the attorney-general shall change the venue to any county he may select " : — Held, that an action under 39 & 40 Vict. c. 80, s. 10, against the secretary of the Board of Trade, to recover damages for the detention of a ship for survey without reasonable and probable cause, is within the above section, that the attorney-general is entitled to demand as of right a trial at bar in such an action, and that the court is bound on his waiving that right to change the venue to any county wherein he elects to have the action tried. Dixon v. Farrer, 18 Q. B. D. 43 ; 56 L. J., Q. B. 53 ; 55 L. T. 578 ; 35 W. E. !)5 ; 6 Asp. M. C. 52— C. A. Petition of Bight — Damages for Breach of Contract by the Crown.] — It is settled law that a petition of right will lie for damages resulting from a breach of contract by the Cro^vn. Tliomas V. Beg. (10 L. K., Q. B. 31), and Feather v. Reg. (6 B. & S. 293), approved. It is immaterial whether the breach is occasioned by the acts or by the omissions of the Crown officials. Windsor and Annapolis Railway Company v. Reg., 11 App. Cas. 607 ; 55 L. J., P. C. 41 ; 55 L. T. 271 ; 51 J. P. 260— P. C. Bepayment of Income Tax.] — A land company paid debenture interest in excess of the assessments under schedule A., deducted income tax from the interest, and returned the whole amount deducted for assessment under schedule D. : — Held, that a petition of right did not lie to obtain repayment of the sum paid under schedule D. Holiorn Viaduct Land Company T. Reg., 52 J. P. 341— Stephen, J. CRUELTY. 1. To Animals.— See Animals. 2. In Wife. Divorce Cases.— See Husband ani> Bight to sue Crown,]- 318, 332, 337. -See cases, ante, cols. Crown 320. Lands.] — Sec cases, ante, cols. 317, CURATE. Sec ECCLESIASTICAL LAW. CUSTODY OP CHILDREN. See INFANT. CUSTOM. As to Eemuneration of Surveyors.] —.*;- Akchitect. As to Bills of Lading.]— .Vcc Shipping (Bills OF Lading). As to Lighterage.] — Sec Shipping (De- MUREAGE). As to Charter-parties.] — See Shipping (Charter- Paety). As to Sale of Goods.]— &e Sale. As to Liability of Principal or Agent.]— &(? Principal and Agent. Of Lloyds.]— Sec Insurance (Marine). Admissibility to Explain Contract.] — Sec E-VIDENCE. CUSTOMS. Annuity Fund — Interest of Subscriber — " Nominee " — Nomination of a Person as Trustee,] — On the construction of the Act 56 Geo. III. c. Ixxiii., by which the Customs Annuity and Benevolent Fund was established, and of the rules made under the authority of that act : — Held, that in appointing a " nominee " of a subscriber's interest in the fund the directors ought to be informed for what purpose the nominee is appointed and to whom the money is 599 DAMAGES — General Principles. 600 to be paid. This may be done by the instrument appointing the nominee or by some other in- strument signed by the subscriber, or by his will. Semble, a " nominee " may be a person who is intended to take as a trustee for others. Wrquhart t. ButterficU, 37 Ch. D. 357; 57 L. J., Ch. 521 ; 57 L. T. 780 ; 36 W. E. 376 — C. A. A subscriber to the fund became lunatic while in Scotland, where he died. He made a will before he became insane giving his property to legatees, but making no allusion to his interest in the fund. A curator was appointed by the Scotch Court of Session, and proved the will. The Court of Session made an order appointing the curator nominee of the subscriber's interest in the fund, " for behoof of the legatees under his will," and the directors of the fund admitted him on those teims. The directors admitted that the order had the same effect as if the subscriber, being sane, had made the nomina- tion : — Held, that the order was a sufficient appointment of the nominee, and a declaration of the persons for whose benefit the sum insured was to be paid ; and that the directors were bound to pay the money to the curator. lb. Customs and Excise.] — See Ebvbnub. DAMAGES. I. General Principles. II. Jurisdiction to Eeduce.— &•« Prac- tice (New Trial). III. In Particular Cases. 1. Penalty or Liquidated Damages. — See Penalty. 2. Damages or Injunetion. — See In- junction. 3. In Actions for Specific Performance. — See Specific Performance. 4. Breach of Warranty of Autliority. — See Principal and Agent. 5. Infringement of Patent. — See Patent. 6. Under Lord CamplieWs Act. — See Negligence. 7. In Actio'/is for Wrongful Dismi-tsal. — See Master and Servant. 8. Action for Waste against Tenant. — See Landlord and Tenant. 9. Action against Tenant for Breach of Covenant. — See Landlord and Tenant. 10. Over-issue of Deientnre Stock. — See Company (Debentures). 11. Non-delivery of Cargo. — See Ship- ping (Cargo). 12. Dishonour of Bill of Exchan-ge. — See Bills of Exchange. 13. Detention of Stock. — See Detinue. 14. In Actions of Trover. — See Trover. 15. Misrepresentations in Prospectus. — See Company (Prospectus). 16. Actions of Damage — Collision. — See Shipping (Collision). I. GENERAL PRINCIPLES. Natural and Beasonable Besult — Negligence — Nervous Shock. ] — Damages in a case of negligent collision must be the natural and reasonable result of the defendants' act ; damages for a nervous shock or mental injury caused by fright at an impending collision are too remote. The Netting Hill (9 P. D. 105) approved. Victorian Railways Commissioners v. Coultas, 13 App. Cas. 222 ; 57 L. J., P. C. 69 ; 58 L. T. 390 ; 37 W. R. 129 ; 52 J. P. 500— P. C. Where a gate-keeper of a railway company negligently invited the plaintiffs to drive over a level crossing when it was dangerous to do so, and the jury, although an actual collision with a train was avoided, nevertheless assessed damages for physical and mental injuries occasioned by the fright : — Held, that the verdict could not be sustained, and that judgment must be entered for the defendants. Qusere, whether proof of " impact " was necessary to maintain the action. lb. Injury to Property by Flood — Injury to Eeversion.j^Owing to the negligence of the defendants a building estate belonging to the plaintiff was' overflowed by a flood. Part of the land was covered with houses (A) which were in the plaintiff's possession. Another part was covered with houses (B) erected by builders under building leases. Other parts were the subject of building agreements under which houses (C) were in course of erection, and the plaintiff was bound to make and had made advances to the builders on the security of the property. The remainder of the land (D) was vacant, and in the plaintiff's possession. The amount of damages to which the plaintiff was entitled was referred to a special referee. In respect of (A) the referee allowed as damages (1) the expense of repairing the houses, and the rent during the period of repairs ; (2) the loss arising from the reduced rental for four years in consequence of the pre- judice against the neighbourhood caused by the flood. As to (B), he found that there was no injury which would last to the end of the leases, but he allowed a sum for depreciation of the selling value of the landlord's interest, in consequence of the houses being worth less to let. As to (C), he deducted the value of the houses when repaired and completed, less the expense of repairing and completing them, from the amount advanced, and awarded this difference to the plaintiff for depreciation of mortgage securities. As to (D), he gave three months of an estimated rent for delay in letting : — Held, that (A) (2) must be disallowed, for the loss of rental arising from the prejudice against the neighbourhood caused by the flood was not the natural result of or directly caused by the flood, and was not a legi- timate ground for giving damages : That the sum allowed in respect of (B) must also be disallowed, for that a reversion can only recover damages where the injury to the property is permanent, so that it will continue to affect it when the re- version comes into possession, and he is not entitled to damages in respect of a temporary injury, on the ground that it affects the present saleable value of his reversion : That the sum given for depreciation of mortgage securities (C) must be disallowed, and an inquiry directed with the view of ascertaining to what extent the flood had made those houses a less sufficient security 601 DAMAGES — General Principles. 602 for the plaintifi's advances than they were before. Must V. Victoria Chawing Dooli Cmnpany, 36 Ch. D. 113 ; 56 L. T. 216 ; 35 W. E. 673— C. A. Agreement to enter into Agreement with Third Party.] — An agreement was made between F. and W. that W. would enter into an agree- ment with F.'s landlord, 0.,for a lease at a given rent for such term and subject to such covenants as 0. should approve, and that F. upon such lease being granted would surrender his lease. W. refused to carry out this agreement : — Held, that F. was entitled to damages from W. for breach of the agreement. Foster v. Wheeler, 38 Ch. D. 130 ; 57 L. J., Gh. 871 ; 59 L. T. 15 ; 37 W. E. 40— C. A. Not advancing Honey as agreed.] — Where there is an agreement to lend money, and special damage results from the breach of that agree- ment, and the party is deprived of the oppor- tunity of getting money elsewhere, substantial, and not merely nominal, damages ought to be awarded. Mancliester and Oldliam Banli v. Coolt, 49 L. T. 674— D. Sale of Goods — Breach of Warranty.] — On a sale of seed potatoes, the potatoes were of an inferior quality to that warranted : — Held, that the purchaser was entitled to the difference in value between the crop actually produced and the crop that would have been produced if the warranty had been complied with, if it were a reasonable thing for the porehaser to plant the seed without examination. Wagstaff v. Short- horn Dairy Company, 1 C. & E. 324 — Cave, J. Uarket Price— Profits.] — The ordinary rule as to the measure of damages in case of breach of contract to accept a manuJEactured article, applies equally in the case of an unmanufactured article. Where, therefore, in the case of an unmanufac- tured article, there is a market price at the date of breach, the profits that would have arisen from the contract, and the losses sustained through its breach, cannot be considered as elements of the damage. Tredegar Iron and Coal Ccmpany v. Gielgud, 1 C. & B. 27 — Field, J. No market — Sub-sale.] — In an action for damages for non-delivery of goods, where the same class of goods is not obtainable in the market at the place of delivery, the price on a sub-sale by a purchaser is evidence of the value of the goods, and the amount by which such price on sub-sale exceeds the contract price may be recovered as damages, although the seller at the time of the contract had no notice of the sub-sale. Strond v. A.iistin, 1 C. & E. 119 — Cave, J. Loss of Market.]— The defendants advertised that they would convey fish from London to Boulogne at certain through rates by their special tidal train and passenger boat, "wind, weather, and tide permitting." A consignment of fish intended for the Paris market (of which fact the defendants had notice) was delivered by the plaintiffs in London to the defendants, to be forwarded to Boulogne. Owing to rough weather, it was not put on board the passenger boat at Folkestone, but was sent on by a cargo boat which arrived at Boulogne too late for the train to Paris. It was delayed at Boulogne for twenty-four hours, and deteriorated, and was put up for sale in the Paris market a day late : — Held, that there was no absolute undertaking to carry the fish by any particular train and boat, and that, if the defendants under the cir- cumstances had used all reasonable care to deliver the fish with the utmost possible despatch, they had discharged their obligation, and that damages could not be given for the loss of the market in Paris. Hawes v. South- Eastern Railway, 54 L. J., Q. B. 174 ; 52 L. T. 514— D. A ship having been damaged by collision with another ship, the owners of cargo on the former claimed damages from the owners of the latter ship. The cargo-owners claimed, inter alia, for damages in respect of the loss of market in con- sequence of a portion of the cargo having been delayed in its arrival at the port of destination : Held, that loss of market was too remote a, con- sequence to be considered as an element of damage, and that there was no difference in the principles as to remoteness of damage, whether the damages are claimed in contract or in tort. Tlie Netting Hill, 9 P. D. 105 ; 53 L. J., P. 56 ; 51 L. T. 66 ; 32 W. R. 764 ; 5 Asp. M. C. 241— C. A. The defendant, the master of the steamer " Carbis Bay," lying at Wilmington, signed bills of lading for 400 bales of cotton " shipped on board the ' Carbis Bay ' " for Liverpool. In con- sequence of insufficient room only 165 bales- could be shipped, and the defendant directed the remaining 235 bales to be shipped on board the steamer " Wylo," then lying in the same port, bound for Liverpool. The " Carbis Bay" arrived at Liverpool on the 26th of October, and the " Wylo " on the 29th of October, and both cargoes were delivered to the plaintiffs, who were in- dorsees of the bills of lading. Between the 26th and the 29th of October a fall in the price of cotton took place, and the plaintiffs sued the defendant for the loss thereby occasioned : — Held, that on the 26th of October the plaintiffs had a right of action against the defendant for non-delivery, that the measure of damages was the market price of cotton on that day, and that the subsequent delivery of the cotton ex "Wylo" could only be taken into account in reduction of damages. Smith v. Tregarthen, 56 L. J., Q. B. 437 ; 57 L. T. 58 ; 35 W. E. 665 ; 6 Asp. lA. C. 137— D. No Notice of Special Contract.] — Section 26 of the Companies Act, 1867, is for the protec- tion of a transferor of shares in a "registered company, and enables him to compel the com- pany to register the transfer in case the trans- feree fails to do so. But the section has made no alteration as regards the ordinary contract for the sale of shares in a company, under which a transferor, in consideration of the price of such shares, is bound to execute a valid transfer and hand the certificates to the transferee, whilst the transferee is bound to get the transfer registered. The plaintiff, under an alleged agreement that certain shares which he held in a company should be taken by one L. in payment of a debt due from him to L., if such shares were regis- tered, executed a valid transfer of the same and handed the certificates to L. The plaintiff applied to the company under s. 26 of the Com- 603 DAMAGES — General Principles. 604 panics Act, 1867, to register the transfer, but they refused to do so upon the ground that he was indebted to them. The question of his in- debtedness was decided in his favour in an action between him and the company, and the transfer was subsequently registered. The com- pany had no notice of the alleged agreement between the plaintiff and L., the transfer being expressed to have been executed for a nominal sum. The market value of the shares having fallen considerably between the date when the transfer was executed and that at which it was actually registered, the plaintiff sought to recover damages from the company for their wrongful refusal to register the transfer : — Held, that the plaintifE was only entitled to recover nominal damages, as the company had received no notice of the alleged agreement between him and L., and also because he had suflEered no damage either in respect of calls or other- wise from the refusal of the companj' to register the transfer. SItinner v. City of London Marine Insurance Corporation, 14 Q. B. D. 882 ; 54 L. J., Q. B. 437 ; 53 L. T. 191 ; 33 W. R. 628— C. A. Purchase for Specific Purpose.] — On breach of ■contract by the seller to deliver an article obviously valueless if used for the purpose for which such an article is ordinarily used, the buyer is entitled to recover damages based on the value of the article if used for the specific purpose for which the buyer bought it, although such specific purpose were unknown to the seller at the time of the sale. Such value may be ascertained by considering the net annual profits to be obtained from such specific use of the article. Be Mattos v. Great Mastern Steam- ship Company, 1. C; & E. 489 — Stephen, J. Notice of Purpose for which Goods sent.] — The plaintiff delivered a parcel at a receiving office of the defendants in London, addressed to " W. H. M., Stand 23, Show Ground, Lichfield, Stafi'ordshire ; van train." Nothing was said by the person who delivered the parcel at the re- ceiving office as to the purpose for which it was being sent to Lichfield, or to draw attention to •the label : — Held, that the label was sufficient notice to the defendants that the goods were being sent to a show, and that the plaintiffs were entitled to recover damages for loss of pro- fits and expenses incurred by the goods being delayed, and not delivered at Lichfield in time for the show. Jameson v. Midland Railway, 50 L. T. 426 -D. A parcel of samples was delivered to the defendants, a railway company, to be forwarded to the plaintiffs. By the negligence of the ■defendants, who had notice that the parcel con- tained samples, it was delayed on the way until the season at which the samples could be used for procuring orders had elapsed, and they had in consequence become valueless. The plaintiffs could not have procured similar samples in the market. In an action for the non-delivery in a reasonable time : — Held, that the plaintiffs were entitled to recover as damages the value to them of the samples at the time when they should have been delivered. Schnlze v. Great Eastern Railway, 19 Q. B. D. 30 ; 56 L. J., Q. B. 442 j 57 L. T, 438 ; 35 W. R. 683— C. A. Honey paid to Settle Action.] — A "boat- staging " or suspension platform, put up for the plaintiffs by the defendant under a contract between them, to enable the plaintiffs to paint a house, fell, through being insecurely fastened by the defendant, and hurt a painter in the employ- ment of the plaintiffs. He brought an action under the Employers' Liability Act (43 & 44 Vict. c. 42) against the plaintiffs for injuries sustained in consequence of the defective state of the boat-staging. The plaintiffs settled the action by paying to the painter 125Z., and then sued the defendant for breach of his contract : — Held, that the defendant was liable under the contract ; but that, inasmuch as the plain- tiffs had employed a competent contractor to put up the boat-staging, and there was, on the facts, no evidence of negligence by the plaintiffs, they were not liable to their servant for the injury he had sustained, and therefore the money which they had paid to settle his action was not re- coverable as damages from the defendant for his breach of contract. Kiddle v. Lovett, 16 Q. B. D. 605; 34 W. B. 518 -D. Notice of Sub-sale — Profits — Costs of Action by Sub-vendee.] — The defendants contracted with the plaintiff to deliver goods to him of a particular shape and description at certain prices and by instalments at different times. When the contract was made the defendants knew that, except as to price, it corresponded with and was substantially the same as a contract which the plaintiff had entered into with a French customer of his, and that it was made in order to enable the plaintiff to fulfil such last-men- tioned contract. The defendants broke their contract, and there being no market for goods of the description contracted for, the plaintiff's cus- tomer obtained damages against him in the French court to the amount of 28Z. : — Held, in an action against the defendants for their breach of con- tract, that the plaintiff was not only entitled to recover as damages the amount of profit he would have made had he been able to fulfil his contract with his customer, but also damages in respect of his liability to such customer, and that in estimating such last-mentioned damages the 28Z. which the French court had given might be treated as not an unreasonable amount at which such damages might be assessed. Mbinger Aetien- Gesellschaft v. Armstrong (9 L. R., Q. B. 473) approved of. Grebert-Borgnis v. Nugent, 15 Q. B. D. 85 ; 54 L. J., Q. B. 511-0. A, Affirming 1 C. & E. 337— Denman, J. The defendant contracted for the sale of coal of a particular description to the plaintiffs, knowing that they were buying such coal for the purpose of re-selling it as coal of the same description. The plaintiffs did so re-sell the coal. The coal delivered by the defendant to the plaintiffs under the contract and by them delivered to their sub-vendees did not answer such description, but this could not be ascertained by inspection of the coal, and only became apparent upon its use by the sub-vendees. The sub-vendees thereupon brought an action for breach of contract against the plaintiffs. The plaintiffs gave notice of the action to the defen- dants, who, however, repudiated all liability, insisting that the coal was according to contract. The plaintiffs defended the action against them, but at the trial the verdict was that the coal was not according to contract, and the sub- vendees accordingly recovered damages from 605 DEBTOES ACT. 606 the plaintiffs. The plaintiffs thereupon sued the defendant for breach of contract, claiming as damages the amount of the damages recovered ■from them in the action by their sub- vendees, and the costs which had been incurred in such a,otion. The defendant paid the amount of the •damages in the previous action into court, but denied his liability in respect of the costs : — Held, that, the defence of the previous action being, under the circumstances, reasonable, the costs incurred by the plaintiffs as defendants in such action were recoverable under the rule in Hadley v. Baxendale (9 Ex. 341), as being damages which might reasonably be supposed to have been in the contemplatiou of the parties, at the time when they made the contract, as the probable result of a breach of it. Baxendale v. London, Chatham and Dover Railway (10 L. K, Ex. 35) discussed and distinguished. Sammond v, Bmsey, 20 Q. B. D. 79 ; 57 L. J., Q. B. 58— C. A. See also Stroud V. Austin, ante, col. 601. Indemnity — Costs of Action.] — Under a cove- nant to indemnify against all actions and claims in respect of the covenants of a lease, costs properly incurred in reasonably defending an action brought for a breach of one of the cove- nants are recoverable as damages. Murrell v. JV«A, 1 C. & E. 80— Williams, .J. DANCING. See DISOKDERLY HOUSE. DEATH. Change of Parties by Death.] — See Practice. Syidence of Death.]— fe Insueanck. Presumption of Law as to.] — See Evidence. DEBENTURE. See COMPANY. DEBTORS ACT. I. Committal in Dbfaui-t of Payment. 1. In what Cases, 606. 2. Jurisdiction and Practice, 607. II, Pebsons in Fiduciaet Capacity, 609. III. Aerest op Person about to quit England, 612. IV. Judge's Order bt Consent, 612. V. Obtaining Credit by Fraud, 613. I. COMMITTAL IN DEFAULT OP PAYMENT. 1. In what Cases. Married "WomAn — Judgment against Separate Estate.] — A married woman cannot be com- mitted to prison under s. 5 of the Debtors Act, 1869, for non-payment of a judgment debt recovered against her, payable out of her sepa- rate estate, under s. 1, sub-s. 2, of the Married Women's Property Act, 1882. Form of order upon such a judgment. Scott v. Morley, 20 Q. B. D. 120 ; 57 L. J., Q. B. 43 ; 57 L. T. 919 ; 36 W. R. 67 ; 52 J. P. 230 ; 4 M. B. K. 286— C. A. Where an order was made that a married woman should pay by instalments the amount of a judgment against her, out of her separate estate not subject to restraint in anticipation, or which, being so subject, was liable to execution under s. 19 of the Married Women's Property Act, 1882, the court, upon her default in pay- ment of the instalments, made an order for com- mittal. Johnstone v. Browne, 20 L. R., Ir. 443 —Ex. D. If in the judgment execution is limited to separate estate which she is not restrained from anticipating, quwre, whether s. 5 of the Debtors Act, 1869, applies at all. Meager v. Pellew, infra. Separate Estate with Restraint on Anti- cipation.] — Judgment for a debt and costs was recovered against a married woman, execution being, by the terms of the judgment, limited to her separate property not subject to any restraint upon anticipation, unless by reason of the Married Women's Property Act, 1882, such property should be liable to execution notwith- standing such restraint. Upon an application for an order of committal against her under s. 5 of the Debtors Act, 1869, the only evidence of her ability to pay was, that since the date of the judgment she had received sufficient income of separate property subject to a restraint upon anticipation : — Held, that no order could be made against her upon that evidence, because s. 5 did not apply to the judgment. Braycott or Darra- cott V. Harrison, 17 Q. B. D. 147 ; 34 W. R. 546 — D. An order, under the Debtors Act, for payment by instalments, will not be made against a married woman whose only separate estate is subject to restraint on anticipation, even though, since the date of the judgment against her, she has received income of the separate estate. Morgan v. Eyre, 20 L. B., Ir. 541— Q. B. D. Upon a judgment summons issued under s. 5 of the Debtors Act, 1869, against a married woman who has only separate estate which she is restrained from anticipating, an order for pay- ment cannot be made unless it is shown that, since the date of the judgment, she has received some of her separate income. Meager v. Pellew, 607 DEBTORS ACT— CommitUd in Default of Payment. 608 or Meager, Em parte, Pellnw, In re, 14 Q. B. D. 973 ; 53 L. T. 67 ; 33 W. R. 573— C. A. Alimony— Committal for Default in Payment.] — Arrears of payments of aiimony payable by a husband by virtue of an order of the Divorce Court made under s. 1 of the act 29 & 30 Vict. c. 32, constitute a debt enforceable under s. 5 of the Debtors Act, 1869. Linton v. Zinton, or Linton, Ex pa/rte, Linton, In re, 15 Q. B. D. 239 ; 54 L. J., Q. B. 529 : 52 L. T. 782 ; 33 W. R. 714 ; 49 J. P. 597— G. A. Where in an order for payment of alimony, the periods for payment are specified, an abso- lute order for an attachment under the Debtors Act may be made, without any preliminary order for payment by instalments. Daly v. Daly, 17 L. E., Ir. 372— Mat. Payment by Instalments.] — On January 30, 1888, an order for alimony pendente lite, and on February 1, 1888, an order for permanent alimony, was made in the Probate and Divorce Division. The sum of 130Z. being due under these orders, a judgment summons in respect thereof was issued by the Vfife : — Held, that a receiving order in lieu of committal could not be made by the court against the husband under s. 5 of the Debtors Act, 1869, and that an order directing payment by monthly instalments of 101. should be made. Otway, Ex parte, Otway, In re, 58 L. T. 885 ; 36 W. E. 698 ; 5 M. B. E. 115— Cave, J. Damages — Non-payment in Divorce Matter.] — The court having ordered damages to be paid into the registry, and proceedings in default being impracticable, as there was no one to institute them, the court ordered the damages to ■be paid to the petitioner, he undertaking to pay them into court. Gyte v. Gytc. 10 P. D. 185 ; 34 W. R. 47— Hannen, P. Security for Costs in Divorce Matter.] — Not- withstanding the provisions of the Debtors Act, 1869, a husband is liable to attachment if he does not find security for his wife's costs of suit. I/ynch V. Lynch, 10 P. D. 183 ; 54 L. J., P. 93 ; 34 W. R. 47— Hannen, P. Non-payment of Costs.] — A respondent being In contempt for non-obedience of an order for restitution of conjugal rights, the petitioner applied for a writ of attachment against him ; — Held, that the writ could not issue for non-pay- ment of costs. Weldon v. Weldon, 54 L. J ., P. 60 ; 52 L. T. 233 ; 33 W. R. 427 ; 49 J. P. 517— C. A. Afarming 10 P. D. 72— Hannen, P. 2. JUEISDICTION AND PBACTICE. Affidavit of Means and Denial of Satisfaction of Debt,]^ — Upon an application to commit to prison under the Debtors Act (Ireland), 1872, s. 6, for non-payment of instalments previously ordered to be paid, there must be an afliidavit showing that at the time of such application the debtor is still in a position to pay the instalments. Davis v. Simmonds, 14 L. R., Ir. 364— Q. B. D. Where a party desires to enforce by commit- ment in the High Court a judgment of a com- petent court, he need not file an affidavit in denial of satisfaction. Nicholson, Ex parte. Stone, In re, 1 M. B. E. 177- Cave, J. "The Means to Pay."]— For the purpose of determining whether a judgment debtor has had "the means to pay" the judgment debt, with the view of making an order for his committal under sub-s. 2 of s. 5 of the Debtors Act, 1869, money derived from a gift may be taken into account. It is not necessary that the "means to pay" should have been derived from the debtor's earnings, or from a fixed income. Koster, Ex parte, Park,In re, or Xoster v. Parh, 14 Q. B. D. 597 ; 54 L. J., Q. B. 389 ; 52 L. T. 946 ; 33 W. E. 606 ; 2 M. B. E. 35— Per Cotton and Lindley, L.JJ. Ability only to Pay part.] — Where a person from whom money is due within the meaning of s. 5 of the Debtors Act, 1869, has means to pay part only of the sum due, and has failed to pay that part, a court is not precluded from malang an order under the section by reason only that he is unable to pay the entire sum. Fryer, Ex parte. Fryer, In re, 17 Q. B. D. 718 ; 55 L. J., Q. B. 478 ; 55 L. T. 276 ; 34 W. R. 766 ; 3 M. B. E. 231— C. A. Fast Default or Anticipatory Order.] — Judg- ment having been recovered against a defendant in a county court an order for payment of 201. was made. The defendant having made default in payment thereof a judgment summons was taken out, and the judge having heard evidence and being satisfied as to the defendant's means made an order to commit him to prison for ten days, but directed that the warrant should be suspended if the debtor paid instalments of 4Z. a month , the first payment to be made in fourteen days : — Held, that the order was in reality an order for commitment in respect of the past de- fault in payment of the 201., and not an antici- patory order for commitment in respect of any future default ; and that this being so the order was valid under the Debtors Act, 1869 (32 & 33 Vict. c. 62),,s. 5. Stonor v. Fowle, 13 App. Gas. 20 ; 57 L. J., Q. B. 387 ; 58 L. T. 1 ; 36 W. E. 742 ; 52 J. P. 228— H. L. (E.). Order, how made in Connty Court.] — See County Court (Jueisdiction). Jurisdiction to make second Order on Canv cellation of first.] — A defendant in a county court having made default in payment of 201. due under a judgment, an order was made to commit him to prison. He was, however, never arrestedL nor imprisoned under the order, which, according to Ord. XXV. r. 33 of the County Court Rules, 1886, expired when a year had elapsed from its- date : — Held, upon motion for prohibition, that as no arrest nor imprisonment had ever takea place upon this order before its expiration, and as the defendant was still in default, the county court judge had power to make a second order of commitment. Reg. t. Stonor or Srmiipton County Court Judge, 57 L. J., Q. B. 510 ; 59' L. T. 669— D. Judgment in Superior Court — Jurisdiction of County Court Judge.]— A county court judge has power to enforce the order or judgment of the High Court, where the High Court has- made no order for payment by instalments, by 609 DEBTORS ACT— Persons in a Fiduciary Capacity. 610 directing payment by instalments of the amount due under such order or judgment, and to commit the debtor in default. But where the High Court has made an order for payment by instalments the county court has no power to vary that order. Addiagton, Ex parte. Ives, In re, 16 Q. B. D. 665 ; 55 L. J.. Q. B. 246 ;' 54 L. T. 877 ; 34 W. K. 593 ; 3 M. B. E. 83— Cave, J. The plaintiff in an action in the High Court obtained an order for payment of costs by the defendant, who agreed to pay by instalments. The defendant having failed to pay, the plaintiff applied to the judge of the county court of the district in wbich the defendant resided for an order under s. 5 of the Debtors Act, 1869 (32 & 33 Vict. c. 62) for payment by instal- ments, and, upon the judge refusing to make the order upon the ground that he had no jurisdiction, applied to the bankruptcy judge in chambers : — Held, that the county court judge had jurisdiction to make the order asked for. WasJier v. Elliott (1 C. P. D. 169) ex- plained, lb. Appeal from High Court.] — By the operation of the Bankruptcy Act, 1883, s. 103, the jurisdic- tion and powers under the Debtors Act, 1869, o. 6, formerly vested in the High Court, are assigned to, and are to be exercised by the judge to whom bankruptcy business Is assigned. By s. 104, an appeal is given in banlcruptcy matters from the order of the High Court to the Court of Appeal. An appeal from an order of the judge to whom bankruptcy business is assigned upon an application under s. 5 of the Debtors Act, 1869, therefore, now lies to the Court of Appeal, and not to a Divisional Court. Genese, Ex parte, Lagcelles, In re, 53 L. J., Q. B. 678 ; 32 W. R. 794 ; 1 M. B. R. 183— D. Effect of Seceiving Order — Arrest.]— Having regard to the terms of s. 9 of the Bankruptcy Act, 1883, as to the effect of a receiving order in protecting a debtor from arrest, the order must be deemed to have been " made " on the day it was pronounced, and therefore as protecting the debtor as from that day. Therefore, where a debtor had been arrested under an order of the Chancery Division made after the date of a re- ceiving order pronounced before, but not drawn up and signed by the registrar until after the arrest, he was ordered to be discharged, notwith- standing that he had by his counsel submitted to the order of attachment. Manning, In re, 30 Ch. D. 480 ; 55 L. J., Ch. 613 ; 54 L. T. 33 ; 34 W. B. Ill— C. A. After a commitment order had been issued by the Mayor's Court in London against a judgment debtor for default in payment of an instalment of the judgment debt, a receiving order was made against him under s. 9 of the Bankruptcy Act, 1883 : — Held, that the commitment order was not a process for contempt of court, but to enforce payment of a debt provable in the bank- ruptcy, and that after the making of the receiv- ing order the debtor was privileged from arrest. Official Heceixer, Ex parte, Ryley, In re, 15 Q. B. D. 329 ; 54 L. J., Q. B. 420 ; 33 W. B. 656 ; 2 M. B. E. 171— Cave, J. II. PERSONS IN A PIDUCIAET CAPACITY. Periods to be Considered.] — To ascertain whether a person ordered to pay and making default fills the character of (a) trustee, (i) per- son acting in a fiduciary capacity, or («) solicitor, within the exception of the Debtors Act, 1869, s. 4, sub-ss. 3 and '4, three periods may possibly be material — namely, (1) when the act on which the order was founded was done, (2) when tha order was ruade, (3) when the default was com- mitted — in cases («) and (J) the period to be looked at is the first ; in case (c),if not the first, at the latest the second period. Per Fry, L. J., in cases (a), (J), and (e), the proper period is the first. Strong, In re, 32 Ch. D. 342 ; 55 L. J., Ch. 553 ; 65 L. T. 3 ; 34 W. E. 614 ; 51 J. P. 6— C. A. Defaulting Trustee — Admission made by mere Debtor.] — By an order of June, 1878, compro- mising an action brought to recover from B. moneys which he had borrowed from A. at inte- rest, B. " by his counsel admitting that the principal sum in his hands claimed in the action amounted to 1.," it was ordered in effect that he should hold 1,7' 01., part thereof, on certain trusts, and should be at liberty to retain it during the life of C, paying interest for it, and liberty was given to apply for pay- ment of the principal and interest if default was made in payment of interest. Default having been made, B. in 1887 was ordered to pay the money into court, and on his failing to do so, leave to issue an attachment was applied for. He deposed that when the order of 1878 was made he had not in his hands any money or investments representing the sum owing from him or any part thereof :— Heldj that although B. up to the order of 1878 was only a debtor and not a trustee, he must, having regard to his admission, be held upon the making of that Older, to have had the money in his hands as trustee — ^that he therefore came within the ex- ception in s. 4, sub-s. 3, of the Debtors Act, 1869, and was liable to attachment for non-pay- ment. Preston v. Etlierini/ton, 37 Ch. D. 104 ; 57 L. J., Ch. 176 ; 58 L. T. 318 ; 36 W. E. 49— C. A. Beceiver and Manager — Administration Ac- tion — No Means.] — A member of parliament was appointed receiver and manager of the busi- ness of a testator in an administration action, but was afterwards discharged and ordered to pass his accounts and pay the balance due from him into court. Subsequently an order was made by which he was directed to pay a certain sum found due from him into court. A motion to attach him for default in payment was made ; but on payment of part of the sum due from him, the motion stood over by arrangement. On the motion coming on for hearing, he made an affidavit to the effect that the amount paid was raised by a friend ; that he had no means, and if a writ of attachment were issued against him he should be unable to pay : — Held, that he was liable to imprisonment as a person acting in a fiduciary capacity within s. 4, sub-s. 3, of the Debtors Act, 1869 ; that it was not a case in which the court would refuse to attach, acting on the discretion given it by the Debtors Act, 1878, s. 1. Gent, In re, Gent-Davis v. Harris, 40 Ch. D. 190 ; 58 L. J., Ch. 162 ; 60 L. T. 355 ; 37 W. R. 151— North, J. Member of Parliament.]— Parliamentary pri- vilege has no application to a case under s. 4, 611 DEBTORS A.CT— Judge's Order. 612 Bub-s. 3, of the Debtors Act, 1869, and therefore a member of parliament may be imprisoned. Jl. Solicitor.] — A solicitor received money belong- ing to a client, and paid it in to his own banking account. Afterwards an order directing him to pay the money to the client was made by the court. After the making of this order the client signed an agreement to accept payment by in- stalments. Default was made in payment of the instalments, and a further order for payment was made. This order having been disobeyed, an order for attachment against the solicitor was made. No order had been made calling on the solicitor to answer affidavits, but the matter had been referred to the master, who had reported that the money was due to the client : — Held, that the case was within the fourth exception in 82 & 33 Vict. c. 62, s. 4, and therefore the soli- citor was liable to imprisonment, and the order of attachment was rightly made, and must be restored. Dudley, In re, Monet, Ex parte, 12 Q. B. D. 44 ; 53 L. J., Q. B. 16 ; 49 L. T. 737 ; 32 W. E. 264— C. A. Town Agent of Country Solicitor.] — A solicitor, the London agent of a country solicitor, made default in payment of a sum ordered to be paid by him in an action for an account of his agency : — Held, that the defendant was liable to imprisonment under s. 4, sub-s. 3, of the Debtors Act, 1869, as a person acting in a fiduciary capacity, but not liable under s. 4, sub-s. 4, as a solicitor ordered to pay in his capacity of officer to the court. lAtclifield v. Jones, 36 Ch. D. 530 ; 67 L. ,T., Ch. 100 ; 58 L. T. 20 ; 36 W. E. 397— North, J. Auctioneer — Money received from Sale.] — An auctioneer is a person acting in a fiduciary capa- city within the meaning of the Debtors Act, 1869, ii. 4, sub-s. 3, and if he makes default in payment of the money produced by the sale of goods entrusted to him for sale when ordered to pay it by a Court of Equity he is liable to attach- ment, whether he still holds the money or has parted with it. Crowther v. Elgood, 34 Ch. D. 691 ; 56 L. J., Ch. 416 ; 56 L. T. 415 ; 35 W. R. 369— C. A. Order on Administratrix to Fay over to JExeoutor.] — Letters of administration had been granted to the widow of a deceased person upon the suggestion of intestacy, and she had received a sum of money, part of the deceased's property. The letters of administration were subsequently called in, in an action propounding a will of the deceased, and in that action she was ordered to pay the sum of money to the administrator pending suit, which order she had not obeyed : — Held, that she was not protected by the Debtors Act, 1869, and therefore was liable to attach- ment. Tinnuehi v. Smart, 10 P. D. 184 ; 54 L. J., P. 92 ; 34 W. E. 46— Butt, J. Defaulting Executor — Possession or Control — Frincipal and Interest.] — ^An executor making default in payment of a sum of money found due from him in an administration action, and which he has been ordered to pay into court, is within the third exception to s. 4 of the Debtors Act, 1869, notwithstanding that the sum consists of a debt which had been owing to the testator during his life, if the executor had been in a fiduciary relation to the testator in respect thereof. But it must be shown that the money ordered to be paid in had been in the executor's possession or under his control. Therefore, where the order directs payment of a sum com- posed of principal and interest not distinguished, an attachment cannot be issued because so much of the sum as represents interest cannot be said to have been in his possession or under his con- trol, liicltey. In re, Hiehey v. Calmer, 55 L. T. 588 ; 35 W. fe. 53— Kay, J. Application for Writ by Person not in position of Cestui que Trust.] — The special remedy aSorded by the Debtors Act, 1869, in respect of default in payment by a trustee, is a remedy intended to be given only as between trustee and cestui que trust, and is not a remedy for a mere creditor, where the person against whom the remedy is sought to be asserted is not a trustee for such creditor. Firviin, In re, London and County Hanking Company v. Firmin, 57 L. T. 45— Kay, J. Appeal from Discretion of Judge.]— When a judge on an application for leave to issue a writ of attachment against a trustee, makes an order for attachment in the exercise of the discretion given to him by the Debtors Act, 1878, the Court of Appeal will not interfere on the merits. Preston v. Etlierington, supra. in. AREEST OF PERSON ABOUT TO QUIT ENGLAND. Debt payable in future — Default by Trustee.] — An order was made that a trustee should within seven days after service of the order pay to his cestui que trust, the plaintiff, a sum found due to him by the chief clerk's certificate. The plaintiff could not find the trustee so as to serve the order, and applied for a writ of ne exeat on the ground that the trustee was about to go out of the jurisdiction : — Held, that the case did not fall within the third ex- ception in s. 4 of the Debtors Act, 1869, the trustee not being in default, as the order only directed payment after service and had not been served, and that as the debt was not now due and payable a writ of ne exeat could not be granted. Colverson v. JBloomfield, 29 Ch. D. 341 ; 54 L. J., Ch. 817 ; 52 L. T. 478 ; 33 W, K. 889— C. A. IV. JUDGE'S OEDEE BY CONSENT. What is.] — An order made by consent at the trial of an action on a promissory note, that the defence be withdrawn, and that the defendant do pay to the plaintiff a specified sum and taxed costs: ■ — Held, not to be a " judge's order made by con- sent" within s. 27 of the Debtors Act, 1869. Lennox, Ex parte, Lennox, In re, 16 Q. B. D, 315 ; 55 L. J., Q. B. 45 ; 54 L. T. 452 ; 34 W. E. 51— C. A. Failure to file Order — Judgment not void as against Judgment Debtor.] — The 27th section of the Debtors Act, 1869 (32 & 33 Vict. c. 62), pro- 613 DECIDED CASES. 614 vides that a judge's order for judgment made by consent of the defendant in a personal action shall be filed in the Court of Queen's Bench in the manner required by the section within twenty-one days after the making thereof, " otherwise the order and any judgment signed or entered up tliereon. and any execution issued or taken out on such judgment, shaU be void : " — Held, that the effect of non-compliance with the requirements of the section is only to render such an order and judgment void as against the creditors of such defendant, but not as against himself ; and, therefore, that a defendant who had consented to such an order could not get the judgment signed upon it set aside on the ground that the order had not been filed in accordance with the section. Gowan v. Wright, 18 Q. B. D. 201 ; 56 L. J., Q. B. 131 ; 35 W. R. 297— C. A. Where a judgment obtained by consent is void for non-compliance with the provisions of 32 & 33 Vict. c. 62, s. 27, the court will refuse to grant leave to issue execution upon and in pursuance of Ord. XLII. 1'. 23. The defendant against whom the judgment is sought to be issued is not estopped from setting up the invalidity of the judgment merely on the ground that it had not been set aside. Jones v. Jaggar, 54 L. T. 731 — D. But see preceding case. Payment by (xarnishee under void Judg- ment.] — The defendant in an action consented to a judge's order for judgment against him, which was accordingly signed, and, a garnishee order having been made upon the judgment, the garnishee paid the debt attached to the judgment creditors, before the expiration of twenty-one days from the date of the making of the judge's order. The order was not filed as required by s. 27 of the Debtors Act, 1869. The defendant subsequently committed an act of bankruptcy, and was thereupon adjudged bankrupt : — Held, that, although the moneys attached under the judgment had already been paid to the judgment creditors before the aci of bankruptcy, neverthe- less, the judgment being avoided by failure to file the judge's order, the trustee in banlsruptcy was entitled to recover from the judgment creditors the amount paid to them by the garnishee as money received to his use. Brown, Mx parte, Smith, inn:, 2U Q. B. D. 321 ; 57 L.J., Q. B. 212 ; 36 W. K. 403— C. A. Bankruptcy Notice.] — ^Where a creditor in whose favour a j adgment has been entered up by consent omits to file the judge's order in accordance with s. 27 of the Debtors Act, 1869, he is nevertheless entitled to serve the debtor with a bankruptcy notice founded on such judg- ment. Cruest, Ex parte, Russell, In re, 37 W. E. 21 ; 5 M. B. E. 258— C. A. V. OBTAINING CEEDIT BY FEAUD. Sufficiency of Indictment.] — See Reg. y. Pierce, ante, col. 572. DEBTOR'S SUMMONS. See BAXKEUPTCT. DEBTS. Assignment ot.]—See Assignment. Attachment ot.']—See Attachment. Payment of]— See Payment. DECEIT. See FEAUD. Uisrepresentation in Prospectus.] ^j^s Com- pany (Pkospectus). DECIDED CASES. Weekly Notes.] — The Court of Appeal does not allow the Weekly Notes to be read as an authority. Pooley's Trustee v. WTietham, 33 Ch. D. 77— Per Cotton, L..J. Case in the " Times " — Verification by Affi- davit.] — It was proposed on the hearing of a case in the Court of Appeal to refer to a report of a case from the "Times," but it was only allowed to be read after having been verified by an afSdavit of the barrister who had acted as the " Times " reporter. Walter v. Em/mott, 54 L. J., Ch. 1061, n.— C. A. Citing Text-books, j — It is to my mind much to be regretted, and it is a regret which I believe every judge on the bench shares, that text-books are more and more quoted in court — I mean of course text-books by living authors — and some judges have gone so far as to say that they shall not be quoted. Union Banh v. Munster, 37 Ch. D. 51 ; 57 L. J., Ch. 124 ; 57 L. T. 877 ; 52 J. P. 453 — Kekewich, J. House of IiOrds Decision on English Case^- Effect on Scotch Case.] — A decision of this House in an English case ought to be held con- clusive in Scotland as well as England, as to the questions of English law and English juris- diction which it determined. It cannot, of course, conclude any question of Scottish law, or as to the jurisdiction of any Scottish court in Scotland. So far as it may proceed upon prin- ciples of general jurisprudence, it ought to have weight in Scotland ; as a similar judgment of this House on a Scotch appeal ought to have weight in England. Mving v. Orr-Ewing, IQ App. Cas. 499 ; 53 L. T. 826— Per Lord Selbome, L. C. Binding Character of Decisions of Court ot Session.] — ^A decision of the court of session in Scotland is not binding upon a divisional court in England, not being a court of co-ordinate jurisdiction ; and the inconvenience which might result from a difEerence between English and Scotch courts on the construction of an act o^ X 2 615 DECIDED CASES. 616 Parliament will not prevent the English court from differing from such previous decision. Morgan v. London General Omnibus Company, 12 4 B. D. 201 ; 50 L. T. 687 ; 32 W. K. 416 — D. Binding Character of Decisions of Privy Council.] — It is true that the decisions of the Privy Council are not theoretically binding on the High Court ; but in case of mercantile and ad- miralty law, where the same principles are pro- fessedly followed in the colonies and in this country, it is, to say the least, highly undesirable that there should be any conflict between the decisions of the Judicial Committee and those of the High Court or Courts of Appeal in this country. The City of Chester, 9 P. D. 207 ; 53 L. J., P. 103 : 51 L. T. 485 ; 33 W. E. Ill ; 5 Asp. M. C. 320— Per Lindley, L.J. Binding Character of old Decisions.] — Where a decision has been frequently questioned, though not overruled, the fact that it has stood for twelve years without being authoritatively overruled, does not bind a court of error to follow it. Pear- son V. Pearson, 27 Ch. D. 145 ; 54 L. J., Ch. 32 ; 51 L. T. 311 ; 32 W.R. 1006— Per Baggallay,L.J. Where there has been a deliberate unappealed decision of a court with regard to the effect of a condition in a common form of contract which has become known to all persons who have to deal with such matters, and has been acted on for eighteen years, it has always been the legal practice, even of courts of eircr, to follow such decisions, even though they would not, perhaps, have given the same decision had the case come originally before them. Palmer v. Johnson, 13 Q. B. D. 355 ; 53 L. J., Q. B. 348 ; 51 L. T. 211 ; 33 W. B. 36— Per Brett, M.E. Where documents are in daily use in mercan- tile affairs, without any substantial difference in form from time to time, it is most material thtt the construction which was given to them years ago, and which has from that time been accepted in the courts of law, and in the mercantile world, should not be in the least altered, because all fiubbequent contracts have been made on the faith of the decisions. Therefore, whether one thinks that one would oneself have come to the same conclusion as the judges did in the be- ginning is immaterial. One ought to adhere strictly to the construction which has been put upon such documents. Pandorf v. Havrilton, 17 Q. B. D. 674 ; 55 L. J., Q. B. 546 ; 55 L. T. 499 ; 35 W. K. 70 ; 6 Asp. M. C. 44— Per Esher, (Lord), M.E. If the question were doubtful I should hesi- tate very long before I laid down a different rule of construction in relation to sections of the Wills Act which have had for many years a par- ticular construction given to them ; because it is impossible to say how many persons may have acted upon the faith that that construction was correct and rested the disposal of their property upon that belief. Of course if it were clear that the construction put by the courts upon the sec- tions was wrong, it would be our duty, disregard- ing the result, to express a contrary opinion. Airey v. Bower, 12 App. Cas. 269 ; 56 L. J , Ch. 742 ; 66 L. T. 409 ; 35 W. E. 657— Per Herschell (Lord). Eule of Procedure, j — Where a judgment contains a decision on a rule of procedure which has thus been brought before the public, the pro- fession, and the legislature, and )'emaiiied undis- tuibed for many years, and has been acted upon and dealt with in statutes ami rules of court, even if I dissented from it, I should hesitate to overrule it. Fraser v. Mhrimjierger, 12 Q. B. D. 318 ; 53 L. J., Q. B. 73— Per Lrett, M.K. Jurisdiction.] — The rule that governs us in not overruling decisions of many ytar."!' stand- ing, on which persons may have acted in making contracts or otherwise, does not apply to a decision as to the jurisdiction of another court, and there is no reason why at any distance of time a superior court should not overrule it. Reg. V. Edwards, 13 Q. B. D. 686 ; 53 L. J., M. C. 149 ; 51 L. T. 586— Per Lord Esher, M. K. Binding Character of old Dicta.] — If , even in the absence of any judicial decision, a dictum in law has been accepted and has entered into con- tracts and dealings, so that, by not following it, I should be actually disturbing anything which had been done in former times over and over again on the faith of this dictum, I should feel mvself bound by it. Bother, In re, BosUer v. Bo'sher, 26 Ch. D. 821 ; 53 L. J., Ch. 722 ; 51 L. T. 785 ; 32 W. E. 825— Pearson, J. Examination by Judge of Practice in his Court.] — I do not thii.k that a judge would wish any statement which he may have made in the course of a case, merely obiter and casually, to be treated as necessarily being an authority on the subject in question ; but when a judge has thought it nectssaiy for the purpose of a case to make a deliberate examina- tion of the practice of his court, and to state such practice, I do not thii.k the authority of such statement can be got rid of merely by arguing that it was not really necessary for the actual decision of the case. Cox. hx parte, 20 Q. B. D. 19 ; 57 L. J., Q. K. 103 ;'58 L. T. 323 ; 36 W. E. 213 ; 62 J. P. 484— Per Loi-d Esher, M.E. Binding Character of Decisions of Lord Chan- cellor on Court of Appeal.] — Although the de- cision of a Lord Chanteljur given before the Judicature Act may- be (iverruled by the Court of Appeal, yet such a course ought only to be taken exceptionally, and in a very strong case. So rarely is that done that piaciically the decisions of a Lord Chancellor and the old Lords Justices are considered as binding on the Court of Appeal. Watts, In re, Cornford v. Elliott, 29 Ch. D. 953 ; 55 L. J., Ch. 332 ; 63 L. T. 426 ; 33 W. E. 885— Per Cotton, L.J. S. P., Gard v. Commissioners of t'ewers, 28 Ch. D. 509 ; 54 L. J., Ch. 707 ; 52 L. T. 830— Per Baggallay, L.J. Conflicting Decisions of different Lord Clian- cellors.] — When we have conflicting decisionsof two Lord Chancellors tlie decision of the sub- sequent Lord Chancellor is entitled to the greater weight, because the sub.-cquent Lord Chancellor could overrule the decision of the ])rior Lord Chancellor. Bcnty v. Wriy, 21 Ch. D. 332 ; 53 L. J., Ch. 674 ; 47 L. T. 231 ; 80 W. E. 850— Per Jessel, M.E. Power of Full Court of Appeal to overrule Decisions of Smaller Number.] — I'he Court of 617 DEED AND BOND— Fom and Contents. 618 Appeal is one composed of six members, and if at any time a decision of a lesser number is called in question, and a difficulty arises about the accuracy of it, I think this court is entitled, sitting as a fall court, to decide whether we will follow or not the decision arrived at by the smaller number. Kelly v. Kdloiid, 20 Q. B. D. 572 ; 57 L. J., Q. B. 330 ; 58 L. T. 263 ; 36 W. E. 363— Per Lord Esher, M.K. Decision in Court of Appeal when Court equally divided.] — It. was the custom for each of the Courts in Westminster Hall to hold itself bound by a previous decision of itself or of a court of co-ordinate jurisdiction. But there is no statute or common law rule by which one court is bound to abide by the decision of another of equal rank ; it does so simply from what may be called the comity of judges. In the same way, there is no common law or statutory rule to oblige a court to bow to its own decisions ; it does so again on tlie grounds of judicial comity. But when a court is equally divided this comity does not exist, for there is no authority of the court as such, and those who follow must choose one of the two adverse opinions. Tlie Vera Cruz, 9 P. D. 96 ; 53 L. J., P. 33 ; 51 L. T. 104 ; 32 W. R. 783 ; 5 Asp. M. C. 270— Per Brett, M.K. Decisions of Courts of Co-ordinate Jurisdic- tion.] — Where there is power to appeal the courts are bound by the decisions of courts of co-ordinate jurisdiction. Casnon v. Churchley, 53 L. J., Q. B. 335 ; 50 L. T. 568— D. See preceding case. According to the comity of judicial tribunals in this country, one court of co-ordinate juris- diction should not, in a case in which there is an appeal, differ from another court of co-ordinate jurisdiction. Palmer v. Johnson, 13 Q. B. D. 355 ; 53 L. J., Q. B. 348 ; 51 L. T.2n ; 33 W. R. 36- Per Brett, M. R. DECLARATION. See CRIMINAL LAW (PRACTICE). DEED AND BOND. I. FOEM AND Contents. 1. Executiim, 618. 2. Alteration!!, 619. 3. Construction, 619. •4. Setting aside and Rectifying Deeds, 623. 5. Consideration. — See Contkact. 6. Evidence to Ewplain. — See Evidence. II. Ebgistkation op Deeds, 627. III. Actions on Deeds, 629. IV. PABTIC0LAK Deeds. 1. Title Deeds, 629. 2. Composition Deed. — See Bankeuptcy. 3. Power of Attorney. — See PoWBB OP Attoknky. y. Pbocbedings on Bonds, 630. I. FORM AND CONTENTS. 1. Execution. Effect of Note appended to Signature.] — Not every attempt by a form of execution to restrain the full operation of a deed can be treated as a non-execution of it. Where a deed of assign- ment by debtors to a trustee for the benefit of all creditors who should execute the deed was executed by the plaintiffs, who appended a note that they executed only in respect of certain claims scheduled to the deed and amounting to $73,531, and it appeared that subsequently thereto they received a sum of money from the trustee by virtue of their execution of the deed : — Held, that the plaintiffs were bound. The note did not amount to a refusal to execute ; and the plaintiffs having received payment under the deed could not be heard to repudiate it, and deny their execution. Willdnson v. Anglo- Californian Gold Mining Company (18 Q. B. 728) held to be inapplicable. Yarmouth Ex- change Bank V. Blethen, 10 App. Cas. 293 ; 54 L. J., P. C. 27 ; 53 L. T. 537 ; 33 W. R. 801— P. C. Of Counterpart presumed.] — D. in 1824, agreed with S. for the purchase of an estate, and that the purchase-deed should contain a covenant by D. that he, his heirs and assigns, would pay to S., his executors, administrators, and assigns, the sum of 6s. for each chaldron of coals gotten out of the estate and shipped for sale. The pur- chase-deed was subsequenily executed by S., but not by D. D., however, entered upon the land, and he and his devisees and their assigns enjoyed the property. Coal was also got and shipped for sale : — Held, that the execution by D. of a counterpart of the deed containing the covenant must be presumed, and that the words " shipped for sale " in the deed meant coal actually shipped for sale. Witkam v. Vane, 32 W. R. 617— H. L. (E.). Reversing, 44 L. T. 718— C. A. Absence of Seal.] — The absence of a seal from deeds of reconveyance which were not proved to have ever been sealed renders them invalid. Sandilands, In re (6 L. R., C. P. 411) con- sidered. A'ational Provincial Banli v. Jachson, 33 Ch. D. 1 ; 55 L. T. 458 ; 34 W. E. 597— C. A. Evidence of Sealing and Delivery.] — A. deposited with B., his stockbroker, the certifi- cates of shares in the Balkis Consolidated Com- pany, and executed a blank transfer to secure the balance of his current account. The arti- cles of the company required that transfers of shares should be made by deed. Shortly after- wards B. filled up the blank transfer with the name of L. as transferee, and deposited the shares with L. as security for money borrowed, as he alleged, in pursuance of the general direc- tions of A. Later on B. closed A.'s account and sold the shares. L., who was willing that the purchase should be completed, applied to the company to register the transfer to himself. In the meanwhile A., who had disputed B.'s ac- count, had given the company notice not to register. L. now moved, under the Companies Act, 1862, s. 35, to rectify the register by in- serting his name. On production of the transfer it appeared that it contained no seal or wafer 619 DEED AND BOND— Form and Contents. 620 in the place of a seal, but only a mark on the paper of the place where the seal ought to be. The transfer was witnessed by B.'s clerk as having been signed, sealed, and delivered by A., but the attesting witness did not make any affidavit, and the evidence of A. and B. as to whether A. put his finger on the seal or not was contradictory : — Held, that no order could be made on the motion ; that L. could have no right to be registered unless A. were estopped from denying that the transfer to L. was good, and this estoppel could only arise if the document delivered to L. were prima facie complete ; that it was not complete in the absence of a seal unless it was shown that it had been sealed, and for this the evidence was insufficient. BalMs Consolidated Company, In re, 58 L. T. 300 ; 36 "W. E. 392— North, J. Proof of.]— &e Eyidbnce. Order by Court to execute.] — An order may be made on a party to an action to execute a conveyance of lands directed to be sold in such action, although the conveyance has not been settled in chambers. Donghei'ty v. Teaz, 21 L. B., Ir. 379— V. C. The Probate Division has jurisdiction under s. 14 of the Judicature Act, 1884, in the event of any person neglecting or refusing to obey its order to execute a deed, to direct its execution by any other person whom it may nominate for the purpose. Howartlh v. Howarth, 1] P. D. 95 ; 55 L. J., P. 49 ; 55 L. T. 303 ; 34 W. K. 633 — C. A. Affirming 50 J. P. 376— Hannen, P. Where a defendant refused to obey an order, directing her to execute a mortgage, the judge appointed his chief clerk to execute it under s. 14 of the Judicature Act, 1884. Edwards, In re, Owen V. Edwards, 33 W. E. 578 — Pearson, J. 2. Altekations. Eifect of.] — What alterations in a document invalidate it, considered. Lowe v. Fox, 12 App, Cas. 206 ; 56 L. J., Q. B. 480 ; 56 L. T. 406 ; 36 W. E. 25 ; 51 J. P. 468— H. L. (E.) 3. Construction. General Words.] — General words, although introduced for the purpose of sweeping into the assurance everything which has been omitted by mistake, apply prima facie only to things ejuS' dem generis with those specifically enumerated Orompton v. Jarrett, 30 Ch. D. 298 ; 54 L. J., Ch. 1109 ; 53 L. T. 603 ; 33 W. E. 913— C. A. Bight of Way.] — A railway company ■purchased under the powers of their act, a piece .of land on which was a stable. By the convey- ance to the company the premises were granted together with all "rights, members or appur- •tenances to the hereditaments belonging or occupied or enjoyed as part, parcel, or member thereof. " The vendor had many years previously made a private road from the highway to the ■stable over his own land for his own convenience, and had used it ever since. The soil of this road •was not conveyed to the company and no express mention of it was made in the conveyance : — Held, that a right of way passed to the company under the general words of the conveyance. Bayhy v. Great Western Railway, 26 Ch. D. 434 ; 51 L. T. 337— C. A. Conveyance of land with Eeservation.] — Where the owner conveys land to a person, re- serving the " liberty of working the coal " in those lands, he must be taken to have reserved the estate of coal (unless there are clear words in the deed qualifying that right of property) with which he stands vested at the date of the conveyance. Hamilton (^Dulie') v. Bunlop, 10 App. Cas. 813— H. L. (Sc.) Implied Condition — Effect of Specific Condi- tion.] — Where in any document a general con- dition would be implied, if there is inserted a specific and limited condition, it must be assumed that such specific and limited condition was meant to take the place of the general condition. Goas, Ex parte, Clement, In re, 3 M. B, E. 153 — C. A. Implied Covenant to keep np Patent — As- signment — Lapse.] — On the sale of a patent by the patentees to a limited company a deed of assignment was executed by the parties, by which after a recital that the patentees had agreed to sell the patent to the company for 250Z., " and for the other considerations therein appearing," the patentees assigned the patent to the company absolutely ; and after covenants for title by the patentees, including a covenant for quiet enjoyment of the patent " during the term subsisting therein," the company covenanted to pay to the patentees a royalty for every article " which should be manufactured or sold by the company " under the patent " while subsisting," and also a proportion of the profits arising from the manufacture or sale, and from licences granted for the manufacture or sale of articles to be manufactured under the patent " while subsisting." The deed contained no express covenant by the company to keep the patent on foot, or to manufacture or sell articles under the patent. On the expiration of the first four years of the patent the company duly paid the first renewal fee under the Patents, Designs, -and Trade-marks Act, 1883, but on tlje expiration of the fifth year they, through inadvertence, omitted to pay the second renewal fee within the time required by the act and the rales there- under, and consequently the patent lapsed. After an ineffectual attempt to obtain a private Act of Parliament to revive the patent, the company passed resolutions for a voluntary winding-up, and the patentees thereupon sent in a claim for damages for the loss, through the lapse of the patent, of the royalties reserved by the assignment, contending that a covena,nt to keep the patent on foot should be implied in the assignment : — Held, that no such covenant could be implied; and that, even if it could, the patentees could not obtain more than nominal damages, the company being under no obligation, either express or implied, to manufacture the patented articles, and being no longer able to carry on business. The doctrine of implying covenants in deeds discussed. Railway and Electric Appliances Company, In re, 38 Ch. D. 597 ; 57 L. J., Ch. 1027 ; 59 L. T. 22 ; 36 W. E. 730— Kay, J. Striking out Words—" In or near."]— Where 621 DEED AND BOND— i^bjw and Contents. 622 the right was granted to hold a market " in sive juxta " a certain place : — Held, that it was con- trary to a canon of construction of a grant or other document, which confers a right to strike out words unless it is absolutely necessary to do so ; and that the grant must be taken to be of a right to hold the market in or near the place in question, that is, of a market without metes and bounds. Attorney- General v. Horner, 14 Q. B. D. 254 ; 54 L. J., Q. B. 227 ; 33 W. E. 93 ; 49 J. P. 326— Per Lord Esher, M.R. Fortius contra Proferentem.] — -See Maxims. Grant of Land adjoining River — Bed of Eiver ad medium filum — Presumption rebuttable,] — The presumption that, by a conveyance describ- ing the land thereby conveyed as bounded by a river, it is intended that the bed of the river, usque ad medium filum, should pass, may be rebutted by proof of surrounding circumstances in relation to the property in question which negative the possibility of such having been the intention. The owners of a manor by convey- ances made respectively in 1767 and 1846 granted to purchasers pieces of riparian land fronting a river, the bed of which formed parcel of the manor. It was proved that, prior to the earliest of the conveyances, a fishery in the river fronting the lands conveyed had for a very long time back been from time to time let to tenants by the lords of the manor as a separate tene- ment, distinct from the riparian closes ; and that at the date of the conveyances in 1846 such fishery was actually under lease to tenants. The grantees under the before-mentioned con- veyances, and their successors in title, had, until the acts complained of in the action, never claimed or exercised any right of fishing over the bed of the river by virtue of any right of sou or otherwise, but the owners of the manor or their tenants of the fishery had always fished without interruption : — Held, that under the circumstances the conveyances ought not to be construed as passing any portion of the bed of the river to the grantees. Detmisliire (^Dnlie) Y. Pattinson, 20 Q. B. D. 263 ; 57 L. J., Q. B. 189 ; 58 L. T. 392 ; 52 J. P. 276— C. A. Through the presumption that a gi'ant of land described as bounded by an inland river passes the adjoining half of the bed of the river may be rebutted by circumstances which show that the parties must have intended it not to pass, it will not be rebutted, because subsequent circumstance^, not contemplated at the time of the grant, show it to have been very disadvan- tageous to the grantor to have parted with the half bed, and if contemplated, would probably have induced him to reserve it ; nor is the pre- sumption excluded by the fact that the grantor was owner of both banks of the river. Michle- thwait V. Newlay Bridge Company, 33 Ch. D. 133 ; 55 L. T. 336 ; 51 j! P. 132—0. A. M. being entitled to lands on both sides of g- river, sold and conveyed to L. a piece of land, the dimensions of which were minutely given in the conveyance, and which was therein stated to contain 7,752 square yards, and to be bounded on the north by the river, and to be delineated on the plan drawn on the deed, and thereon coloured pink. The dimensions and colouring extended only op to the southern edge of the river, and if half the bed had been included the area would have been 10,031 square yards instead of 7,752. The deed contained various reaerva- tions for the benefit of M., but contained nothing express to show whether the half of the bed was intended to pass or not. M. was at the time owner of a private bridge close by, from which he received tolls. Thirty years afterwards a bridge was projected to cross the river from L.'s land. The plaintiffs, who had succeeded to all M.'s property in the neighbourhood, brought their action to restrain the making the new bridge. If the grant to L. passed half the bed, no part of the new bridge would be over land of the plaintiffs : — Held, that the presumption that the grant included half the bed was not rebutted, and that an injunction could not be granted on the ground that the erection of the bridge would be a trespass. /*. Parcels — Description — Cfeneral Words — Copy- holds passing with Freeholds.] — A mortgage was expressed to comprise by way of grant in fee "all and every the estate, right, title, property, and interest of the mortgagor of and in all and every those two fields or parcels of land, containing together about twenty-two acres or thereabouts, situate at and abutting upon the main road at " H., and " bounded upon one side by " B. Lane, " and also of and in all and eveiy other, if any, the lands, hereditaments, and premises at H. aforesaid of, in, or to which the mortgagor hath any estate, right, title, property, or interest." All of the mortgagor's property at H. was freehold, except a strip of land of about three-quarters of an acre which lay between the freeholds and B. Lane, and which was of copyhold tenure : — Held, that the copy- hold strip passed under the general words and was included in the mortgage. Roolte v. Ken- sington (2 Kay & J. 753), and Crompton, v, Jarratt (30 Ch. D.,298), distinguished. Semble, having regard to the position of the property and the description in the deed, the copyhold strip was included in the parcels themselves. Early v. Rathhone, 57 L. J., Ch. 652 ; 58 L. T. 517 — Kekewich, J. Inconsistency between Becitals and Opera* tive Part — General Words.] — A marriage settle- ment contained a recital that the land intended to be dealt with was subject to a certain charge, and to a term of 1,500 years. The operative part of the deed referred to a schedule in which certain lands situate in four townships in the county of Durham, and subject to this charge, were particularly described. The operative part also contained general words referring to all other lands belonging to the settlor in these townships. The settlor at the time of the settle- ment was entitled to other lands in two of these townships of about the same value as the scheduled property, but subject to a different set of charges to those mentioned in the recitals : — Held, that these last lands did not pass by the deed, and that the operation of the general words was confined to the lands which were subject to the charges mentioned in the recitals. Durham (_EarV), In re, Grey {Earl) v. Durham, (JEarV), 57 L. T. 164— Stirling, J. Becital limiting Operative Part.]— The opera- tive part of a power of attorney appointed X. and Y. to be the attorneys of the plaintiff without in terms limiting the duration of their powers, but it was preceded by a recital that the 623 DEED AND BOND— i^orm and Contents. 624 plaintiff wns going abroad, and was desirous of appointing nttoriieys to act for him during his absence : — Held, that the recital controlled the generality of the operative part of the instru- ment, and limited tlie exercise of the powers of the attorneys to the period of the plaintiff's absence from this country. Danby v. Coutts, 29 Ch. D. 500 ; 54 L. J., Ch. 577 ; 52 L. T. 401 ; 33 W. E. 559— Kay, J. Covenant running with Land — Covenant to Bepair and Maintain Bead.] — The doctiine in Tulh T. Mcrhay (2 ?h. 774) is limited to restric- tive stipulations, and will not be extended so as to bind in equity a purchaser taking with notice of a covenant to expend money on repairs or otherwise which does not run with the land at law. Semble, that the burden of a covenant (not involving a grant) never runs with the land at law, except as between landlord and tenant. Coolie v. Chilcott (3 Ch. D. 694) over- ruled on this point. Morland v. Coohe (6 L. E., Eq. 252) explained. Holmes v. Bucldey (1 Eq. C. Ab. 27) discussed. Consideration of the circumstances under which a covenant will be held to touch or concern the land of the cove- nantee so that the benefit may run with the land. Avstcrterry v. Oldham. Corporation, 29 Ch. D. 7.50 ; 55 L. J., Ch. (;S3 ; 53 L. T. 543 ; 33 W. E. 807 ; 49 J. P. 532— C. A. A. by deed conveyed for value to trustees in fee a piece of land as part of the site of a road intended to be made and maintained by the trustees under the provisions of a contempora- neous trust deed (being a deed of settlement for the benefit of a joint stock company established to raise the necessary capital for making the road) ; and in the conveyance the trustees cove- nanted with A., his heirs and assigns, that they, the trustees, their heirs and assigns, would make the road and at all times keep it in repair, and allow the use of it by the public subject to tolls. The piece of land so conveyed was bounded on both sides by other lands belonging to A. The trustees duly made the road, which afforded the necessary access to A.'s adjoining lands. A. afterwards sold his adjoining lands to the plain- tiff, and the trustees sold the road to the defen- dants, both parties taking with notice of the covenant to repair : — Held, that the plaintiff could not enforce the covenant against the de- fendants, li. Equitable Estate in Fee— Words of Inherit- ance.] — An equitable estate in fee could not be created by a deed executed befoi-e the Convey- ancing nnd Law of Pioperty Amendment Act, 1881 (44 & 45 Vict. c. 41), without words of inheritance. Meyler v. Meyler. 11 L. E., Ir. 522 — V.-C. 4. Setting Aside and Eeotifying Deeds. Originating Summons.]— The validity of a re- lease can be determined on an originating sum- mons under Ord. LV. r. 3, which asks also for the administration of the estate of a deceased testator, even when it is admitted that adminis- tration is not wanted. Garnett, In re, Gandy V. Macaulay, 50 L. T. 172 ; 32 W. E. 474— V.- C. B. Bectification and Specific Performance in same Action. ] — Since the Judicature Act, 1873, the court has jurisdiction (in any case in which the Statute of Frauds is not a bar), in one and the same action to rectify a written agreement, upon parol evidence of mistake, and to order the agreement as rectified to be specifically per- formed. OUey V. Fifher, 34 Ch. D. 367 ; 56 L. J., Ch. 208 ; 56 L. T. 807 ; 35 W. E. 301 — North, J. Bectification — Nothing left to be performed nnder Agreement.] — After money has been paid under a judgment founded on the construction of an agreement, an action to rectify the agi'ee- ment on the ground that such construction was contraiy to the intention of all parties is barred. Caird v. Moss, 33 Cb. D. 22 ; 65 L. J., Ch. 854 ; 55 L. T. 453 ; 35 W. E. .52 ; 5 Asp. M. C. 565— C. A. Disentailing Deed. J — The court is not prohibited by the Fines and Eecoveries Act (3 & 4 Will. 4, c. 74), s. 47, from exercising its ordinary jurisdiction to rectify, on the ground of mistake, a deed of re-settlement which has been enrolled as a disentailing assurance under the act. Sail-Dare v. Hall-Bare, 31 Ch. D. 251 ; 55 L. J., Ch. 154 ; 54 L. T. 120 ; 34 W. E. 82— C. A. Mistake as to Parcels.] — Where there has been a mistake in the parcels contained in an executed lease, although it may be a mistake by the plaintiff only, the court will order the annulment, or, at the option of the defendant, the rectification of the lease. Paget v. Marshall, 28 Oh. D. 255 ; 54 L. J., Ch. 575 ; 51 L. T. 351 ; 33 W. E. 608 ; 49 J. P. 85— V.-C. B. Onns of Proof — Marriage Settlement.] — The onus lies on those who seek to alter an instru- ment to show why it should be altered, not on ihose who support it, to show why it should not be altered. A settlement on marriage will not be rectified or altered, unless it is shown that at the time when the deed was executed there was some definite arrangement in accord- ance with which it ought to have been prepared as it is desired to rectify or alter it. As to persons not within the consideration, such a settlement cannot be regarded as on the same footing as a voluntary settlement. Tucker v. Bennett, 38 Ch. D. 1 ; 57 L. J., Ch. 507 ; 58 L. T. 650— C. A. Want of Independent Advice — Father Agent for Wife.] — On the marriage of a daughter, who is living on affectionate terms with her father, he is the proper person to recommend and advise her, and her natural guardian in matters relating to the preparation of her mar- riage settlement, and there is no occasion for any independent legal adviser beyond the family solicitor. Smith v. ll/ffe (20 L. E., Eq. 666) dissented from. lb. General Knowledge.] — Where in an action to obtain the cancellation or modification of a voluntary deed on the ground of undue in- fluence and want of independent advice, the plaintiff admits that he had an accurate general knowledge of what he was doing, and only refused to receive a detailed explanation of the deed because he trusted his solicitor to look 625 DEED AND BO'ND— Form and Contents. 626 into those details on his behalf, he was as much bound as if he were himself a lawyer, and had drawn the deed with his own hand. Lovell v. Wallis, 50 L. T. 681— Kay, J. Setting aside Belease — Ulstake — Lapse of Time.] - A release to a trustee was set aside alter the lapse of more than twenty yeai-s, and after the death of the trustee, on evidence of the plaintiflE (corroborated by the terms of the deed) that it was executed in error. In such a case it ii not necessary to prove fraud. Gamett, In re, Gandy v. Macmilaij, 31 Ch. D. 1 — C. A. A testator bequeathed one-hiilf of his residuai-y personal estate to his sister, and one-quarter thereof to each of his two nieces ; he appointed his sister trustee and executrix of his will, and died in the year 1855. The residuary personal •estate consisted principally of railway shares and stocks, and at the time of passing the residuary account it was valued at 42,000i. The nieces lived with their aunt, who had brought them up from childhood. In 1859, the nieces executed a release of all suits and causes of action in favour of their aunt in consideration of the payment of 10,5002. to each. At the time of the execution ■of the release, the railway shares and stocks had increased in value, and thfe share of each of the nieces was worth much more than 10,5002. The release was drawn up by the aunt's solicitor, and the nieces had no independent advice and exe- cuted it in error, but no fraud was imputed. In 1879, the aunt died. In 1883, an action was commenced by one of the nieces to set aside the release : — Held, that the release was invalid and must be set aside. IT). Power of Disposition on failure of issue omitted.] — By a voluntary settlement property was assigned to trustees in trust for the settlor for life, remainder for any wife he might marry for life, with remainders to his issue, and in default or failure of issue in trust for his paternal next-of-kin : — Held, that though a settlement was proper to be made, and though the settlor understood the terms of this settlement, yet as his attention was not drawn to the fact that he might have had a power of disposition over the property in default or failure of issue, such a power ought to be given, and the settle- ment must be rectified accordingly. James v. Couchvian, 29 Ch. D. 212 ; 54 L. J., Ch. 838 ; -52 L. T. 344 ; 33 VV. R. 452— North, J. Absence of Power of Bevocation — Solicitor taking indirect Benefit under Seed.] — A man of full mental capacity, seised of property which, according to the opinion of one counsel, was limited to the use of himself for life, with remainder to his first and other sons in tail male, with remainder to himself in fee ; and according to another opinion, was limited to the use of himself in tail male ; instructed a solicitor who had acted generally for him, to prepare a voluntary deed for the benefit of his three nephews — young men in the prime ■of life, brothers of the half-blood of the solicitor, their father being then alive. The solicitor sent instructions to counsel to prepare a deed barring the entail, and settling the lands in ■equal shares among the nephews. The deed was drafted by counsel, limiting the lands to the settlor for life ; remainder to his wife for life ; remainder to the three nephews as tenants in common in fee, with onerous covenants on the part of the settlor, and without any power of revocation. It was duly executed iu 1852, but was not registered. The last survivor of the three nephews died in 1864, leaving the solicitor his heir at law. The settlor in 18fi8, after being further advised by counsel as to the effect of the deed of 1852, and his position with respect to it, executed another voluntary deed, duly registei'ed. to the trustees of the deeds of 1852, limiting the property in favour of the plaintiff, his adopted child, but took no proceedings to set aside the deed of 1852, and died in 1874. In an action brought by the plaintiff in 1882, to have the solicitor declared a trustee for the plaintiff, and others entitled under the deed of 1868, there being no evidence of fraud or undue influence in the preparation and execntion of the deed of 1852: — Held, that although there was no evidence of fraud or undue influence, it was the duty of the solicitor under the circumstances to have disti etly called the attention of the settlor to the advisableness of inserting a clause of revocation in the deed of 1852, and to have pointed out the results that might ensue from its omission; ad that therefore the solicitor could not hold a title depending on the absence of a clause of revocation in the deed. Horan v. Macmahon, 17 L. R., Jr. 641 — C. A. Cancellation — Inchoate Marriage Settlement.] — In contemplation of marriage, an intended wife and her father executed the engrossment of a settlement of, inter alia, funds to be provided by the father, and the present i.nd after-acquired property of the ill tended wife. The engrossment was given into the custody of the solicitors of the intended husband ; it was not executed by him or the trustees. The engagement was broken off by agreement. After the lapse of three and a half years the court declared the engrossment void as a settlement, and directed it to be given up. Bond v. Walford, 32 Ch. D. 238 ; 55 L. J.. Ch. 667 ; 54 L. T. 672— Pearson, J. By a settlement executed in 1 877, in considera- tion of a then intended marriage, it was declared that a sum of stock, the property of the intended wife, which had been transferred by her to two trustees, should be held by them on trust for the benefi.t of the intended wife, the intended hus- band, and the issue of the intended marriage. The maixiage was not solemnized, but the parties cohabited without marriage, and three children were born. In 1883 an action was brought by the father and mother against the trustees of the settlement, to obtain a transfer of the fund to the mother : — ^Held, that the contract to marry had been absolutely put an end to, and that the coui-t could order the stock to be trans- ferred to the lady. Ussery v. Cowlard, 26 Ch. D. 191 ; 53 L. J., Ch. 661 ; 51 L. T. 60 ; 32 W. R. 518 — Pearson, J. Action to set aside Marriage Settlement — Fraud.]— In an action to set aside a marriage settlement, the plaintiff alleged as the grounds of his action, that, previous to the execution of the settlement made upon the marriage between himself and J. S., the latter slated to him that her first husband had been divorced from her, at her suit, by reason of his cruelty and adultery ; that such statements were made to induce him 627 DEED AND BO'i^B— Registration of Deeds. 628 to execute the settlement and contract the mar- riage ; that, in reliance on the representations, he executed the settlement and married J. S. ; that he subsequently discovered that the repre- sentations were false to the knowledge of J. S., and that she had been divorced from her hus- band at his suit and by reason of her adultery : — Held, on motion by the defendant, that the plaintiff's statement of claim must be struck out under Ord. XXV. r. 4, as disclosing no reasonable ground of action. Johnston v. John- ston, .52 L. T. 76 ; 33 W. R. 239— C. A. Afdrm- ing 53 L. J., Ch. 1014— Pearson, J. Variation of Settlements on Divorce.] — See Husband and Wipe (Divoece). II. KEGISTEATION OF DEEDS. Middlesex — Fees for registering Memorial.] — For registering a memorial of a deed of 199 words in the Middlesex Registry under 7 Anne, c. 20, the fees claimed and received were, — Is. for " entry " of the memorial (under s. 11") ; Is. 6d. for " administering the oath " of the signing and delivery of the memorial (under s. 5) ; Is. for " indorsing a certificate of the said oath upon the memorial, and signing the same " (under s. 5) ; Is. for the " certificate indorsed upon the deed to the effect that it had been registered, with the day and hour on wWch the memorial was entered or registered" (under s. 6) : — Held, that these fees were warranted by the act. Munton v. Trwro (^Lordi), 17 Q. B. D. 783 ; 55 L. J., Q. B. S63 ; 55 L. T. 293 ; 35 W. R. 138— D. Copyhold Estate — Enfranchisement Deed.] — As, on the execution of a deed enfran- chising copyhold land in the county of Middle- sex, such land ceases to be copyhold and becomes freehold, in such a case the exception in s. 17 of 7 Anne, c. 20, does not apply, and therefore a memorial of such a deed must be registered under s. 1 of the act. Refi. v. Tntro (^Lord), 21 Q. B. D. 555 ; 57 L. J., Q.'B. 577 ; 59 L. T. 242 ; 36 W. R. 775— C. A. Attesting Witness — Execution — Memo- rial—Commissioners to administer Oaths.] — A memorial of a deed required to be registered in Middlesex, need not, under 7 Anne, c. 20, s. 5, be attested by a witness 1o the execution of such deed by the grantor ; but if the witness be a witness to the execution of the deed by the grantee, it is a sufficient compliance with the statute. A London commissioner to administer oaths in Chancery is now qualified, under 16 & 17 Vict. c. 78, R. 2, to administer oaths to wit- nesses under the provisions of 7 Anne, c. 20, s. 5. n. Registration of Final Order of Fore- closure.] — An order for foreclosure absolute in respect of lands in MiddlesL'x is not a judgment within the meaning of 7 Anne. u. 20, s. 18, and 1 & 2 Vict. c. 110, so as to require a memorial to be entered at the Middlesex Registry Office ; and a direction to the Registrar of Deeds to that effect was refused. Hui-rmos v. Hollcy, 35 Ch. D. 123 ; 56 L. J., Ch. 605 ; 56 L. T. 506 ; 35 W. E. 592— Chitty, J. Unregistered 'Will — Notice— Principal and Agent.] — A testatrix, who died in 1871, by her will devised real estate in Middlesex to trustees upon trust for sale. The will was not registered in Middlesex. The heir-at-law of the testatrix having learned that the will had not been registered, mortgaged the property to dif- ferent mortgagees, and registered the mortgages. The mortgage deeds were prepared and registered by the heir-at-law himself. The surviving trustee received the rents of the property down to 1878, when he died, and in 1879 a receiver was ap- pointed in an action to administer the estate of the testatrix. The property was sold in 1882 under an order of the court, and notice of the mortgages was then given by the mortgagees to the purchasers, and the purchase moneys were paid into court subject to the claims of the mortgagees. The heir-at-law died in 1885. An application was made to transfer the purchase moneys to the account of the devisees under the will. The mortgagees resisted the application on the ground that the act of 7 Anne, c. 20, gave them a title, because the will had not been registered. Neither of the securities was for moneys advanced, but both for old debts, and the heir-at-law acted in the mortgage transac- tions as agent of both the mortgagees : — Held, that, if persons claiming under the act bad notice of the will, they could not set up the title of the heir-at-law ; that in the present case, the mortgagees were affected by the notice which their agent the heir-at-law possessed ; and that consequently their claims failed. Weir, In re, HolUngworth v. Willing, 58 L. T. 792 -Chitty, J. Mortgages — Priority of.] — Mortgagees of a share of the proceeds of sale of real estate in Middlesex devised upon trust for sale do- not acquire priority by registration, but by notice given to the trustees of the will. Arden V. Arde?i, 29 Ch. D. 702 ; 54 L. J., Ch. 655 ; 52. L. T. 610 ; 33 W. E. 593— Kay, J. Advances by First Mortgagee after Begistra- tion of Second Mortgage and Lis pendens.] — A. being in possession of certain lands, executed a. mortgage, which was duly registered, to the N. bank, to secure past and future advances. Sub- sequently A. executed an agreement to mortgage the same lands to B., and in pursuance of such agreement, a mortgage was executed to B., whi> registered both instruments, but gave no notice to the bank. B. filed a petition for sale of the lands, and registered the matter as a lis pendens. The fiiBt actual notice given to the bank was the service on it of the conditional order for sale : — Held, that advances made by the bank after the registration of the subsequent agreement, mort- gage, and lis pendens, were not " dispositions " within the meaning of the 4th section of the Irish Registry Act (6 Anne, c. 2), and that all advances made by the bank prior to the service upon it of the conditional order for sale were entitled to priority over the second mortgage. O'Byrrw's Estate, In re, 15 L. R., Ir. 373— C. A. Vendors allowing Vendees to Register — Lien. — Unpaid Purchase -money.] — Trustees of a charity conveyed land in Yorkshire to R. and W., part of the purchase-money remaining un- paid, and allowed E. and W. to register the con- veyance, knowing that they wanted to do so in order to re-sell the land in lots : — Held, that the €29 DEED AND BO'N'D— Proceedings on Bonds. trustees had, by their conduct, precluded them- selves from asserting their lien for unpaid pur- chase-money against bon& fide sub-purchasers from E. and W. without actual notice, though the sub-purchasers had not examined, as it was their duty to have done, the conveyance to E. and W., a memorial of which was registered, and though the estate of one of the sub-pur- chasers was equitable only. Xettlewell v, Wat- son, 26 Ch. D. 501 ; 53 L. J., Ch. 717 ; 51 L. T. 135 ; 32 W. E. 865— C. A. A vendor's lien for unpaid purchase-money need not be registered under 2 & 3 Anne, c. 4. lb. III. ACTIONS ON DEEDS. Person relying on opposite Constructions in different Actions.] — Where a litigant has obtained a construction by the court of certain covenants in a deed in his favour, he cannot in a second suit set up a contrary construction to that adopted by the court in the first suit. Gandy v. Gandy, 30 Ch. D. 57 ; 54 L. J., Ch. 1154 ; 53 L. T. 306 ; 33 W. E. 803— C. A. Who may sue on — Cestui que trust.] — To entitle a third person not named as a party to a contract deed, to sue either of the contracting parties, that third person must possess an actual beneficial right which places him in the position of cestui que trust under the deed. Ih. IV. PAETICULAE DEEDS. 1. TITLE-DEEDS. Custody of — Trustee in Bankruptcy — Life Estate of Bankrupt's Wife.] — The trustee in bankruptcy of a husband, whose wife is legal tenant for life of land (not to her separate use) has no absolute right to the custody of the title- deeds of the land during the coverture, but the court has a discretion as to the custody. In a case in which there was evidence that a bank- rupt's wife was about to apply to the Divorce Court forthe dissolution of the marriage : — Held, that the title-deeds of land, of which she was legal tenant for life, ought not to be delivered to the trustee in the bankruptcy, but ought to be retained in court, where the county court judge had, upon the trustee's application for delivery to him, ordered them to be deposited. Rogers, Mx parte, Pyatt, In re, 26 Ch. D. 31 ; 53 L. J., Ch. 936 ; 51 L. T. 177 ; 32 W. E. 737— C. A. Per Cotton, L. J. : — ^Whether under ordinary circumstances, an assignee from a husband of his right to receive during the coverture the rents of land of which his wife is legal tenant for life, is entitled as a matter of course to the custody of the title-deeds, qujere. IT). Deeds relating to two Estates— Custody of Solicitors of previoas Owner of both Estates.] — The owner in fee of an estate gave her title- deeds into the possession of her solicitors. She afterwards settled the estate, and under the limi- tations of the settlement part of the estate be- came vested, after laer death, in the plaintiffs, and the remainder in the heir-at-law of the settlor. The heir-at-law could not be found. The solicitors refused to deliver up the deeds to 630 the plaintiffs : — Held, that the plaintiffs could not recover possession of the deeds from the solicitors without the concurrence of the heir ; but that the deeds must be deposited in court, the plaintiffs having liberty to inspect and make copies of them. Wright v. Mobotham, 33 Ch. D. 106 ; 55 L. J., Ch. 791 ; 55 L. T. 241 ; 34 W. E. 668— C. A. Production of, to Cestui que trust.] — Prima facie, and in the absence of any special circum- stances, a cestui que trust, even though he be only interested in the proceeds of the sale of land, is entitled to the production and inspection of all title-deeds and other documents relating to the trust estate which are in the possession of the trustees. One cestui que trust can enforce this right against the trustees, without bringing before the court the other persons beneficially interested in the property when they have no higher right than liimself . Cowin, In re, Cowin V. Gravett, 33 Ch. D. 179 ; 56 L. J., Ch. 78 ; 34 W. E. 735— North, J. V. PEOCEEDINGS ON BONDS. Order XIV— Penalty.] — The indorsement on a wiit claimed 500Z., as the principal sum due on a bond conditioned for the payment by the obligor to the plaintiff of an annuity of 261. during the life of a child, and until she should attain the age of sixteen years, by specified quarterly payments, and alleged that two of such payments were due and unpaid : — Held, that the plaintiff was not entitled to proceed under Ord. XIV. r. 1, to obtain final judgment, but was limited to the procedure specified in 8 & 9 Will. 3, c. 11, a. 8, and Ord. XIII. r. 14. Tutlier v. Caralampi, 21 Q. B. D. 414 ; 59 L. T. 141 ; 37 W. E. 94 ; 52 J. P. 616— D. Obligation to pay Interest regularly — Default —Forfeiture.] — On a bond with a penalty con- ditioned for the payment of money at a given day, and interest at stated intervals in the meantime, the whole sum becomes demandable on default in the regular payment of interest. It is no defence to plead that the obligors credited the obligee with interest in their books upon which the obligee could draw. Goad v. Empire ' ' 52 J. P. 438— Stephen, J. Lien on Eeal Estate.] — See Lien. Condition in Bestraint of Trade — Enforcing by Injunction.] — See London and Yorhshire Banh v. Pritt, ante, col. 487. Who may Sue on— Assignee.] — See Palmer v. Mallet, ante, col. 487. Foreign Bond— Negotiability.]— 6'(r Negoti- able Instruments. 631 DEFAMATION— Ira Ordinary Cases. 632 DEFAMATION. I. In Ordinaby Cases. 1. Wliat is Actionable, 631. 2. Privilege. a. Absolute, 633. h. Qualified, 633. 3. Evidence, 635. 4. Practice and Pleading, 636. II. Criminal Pkocebdinqs, 689. III. Slander of Title.— any, 55 L. T. 689— C. A. Power of County Court to order Betnm of Chattel.] — In an action of detinue brought in the county court, the county court judge has jurisdiction to make an order for the delivery by the defendant of the specific chattel wrongfully detained, without giving him the option of pay- ing its assessed value as an alternative. Win- field V. Boothroyd, 54 L. T. 574 ; 34 W. R. 501 — D. DEVASTAVIT. See EXECUTOR AND ADMINISTRATOR. DEVISE. See WILL. DILAPIDATIONS. Ecclesiastical.]— ISCOYEBY— Documents. 652 5. DOCUMENTS HELD IN EIGHT OF ANOTHER. Liquidator — Books of Company.] — In an action on a promissory note, made by the defen- dant as to security for the repayment of moneys due to the plaintiffs from a limited company, the defendant objected to produce documents relating to the matters in question in the action, being the banker's pass book and directors' minute book of the company, on the ground that they were in his custody only as liquidator in the voluntary winding up of the company. The company had been dissolved before the application for the discovery of documents was made, but no resolution had been passed under the Companies Act, 1862, s. 155, for the disposal of the documents belonging to it : — Held, that the plaintiffs were entitled to the inspection of the documents, inasmuch as the defendant had them in his absolute control. London and York- shire Bank v. Cooper, 15 Q. B. D. 473— C. A. Affirming 54 L. J., Q. B. 495 ; 33 W. E. 750— D. 6. SEALING UP DOCUMENTS. Partnership Books — Surviving Partner. ] — The defendant and W. P. were partners. W. P. died and appointed the defendant his executor. In an action by a person interested under W.P.'s will against the defendant a decree was made for administration of W. P.'s estate, and for taking accounts of the partnership as between the defendant as surviving partner and W. P.'s estate. An order having been made for the pro- duction of the partnership books by the defen- dant, he claimed to seal up such entries as related to his own private affairs : — Held, that inasmuch as the plaintiff and defendant were both interested in the partnership property, the defendant was not entitled to the ordinary power to seal up such entries as he might swear to be irrelevant to the matters at issue in the action, but only to seal up entries which related to certain specified private matters mentioned in the order. Pickering, In re, Pickering v. Piekering, 25 Ch. D. 247 ; 58 L. J., Ch. 550 ; 50 L. T. 131 ; 32 W. R. 511— C. A. Form of Affidavit.] — In an affidavit of sealing up irrelevant matter, it is not necessary for the deponent to state positively that no sealed-up portion relates to the matters in question. Per Fry, L.J. : The affidavit ought to state what has been done, and upon whose investigation the deponent is relying, and, if he has not conducted the investigation himself, he ought to pledge his oath to the belief that nothing sealed up is relevant to the matter. Jones v. Andrews, 58 L. T. 601— C. A. Conclusiveness of Affidavit.] — The mere fact that the sealing up, or affidavit of sealing up, has not been done without carelessness is not a sufficient ground for ordering a general unseal- ing. In such oases, as in ordinary cases of discovery of documents, the person seeking discovery is bound by the oath of the party making discovery, unless the court is satisfied, not on a conflict of evidence, but from (1) the documents produced, (2) something in the affidavit of documents or sealing, (3) admission of the party making discovery, or (4) necessarily from the circumstances of the case, that the affidavit as to documents or sealing does not truly state what it ought to state. Tb. Application (or General TInBealing. J — In an action by a principal against his agents the plaintiff claimed an account of all sums received and paid by the defendants as his agents. , The plaintiff subsequently obtained an order for an affidavit of docuriients. The defendants then obtained liberty to seal up such portions of the documents as were irrelevant, and they sealed up more than 10,000 passages contained in nearly 5,000 books and documents. The plaintiff then applied for an order on the defendants to unseal all books and documents, and all portions there- of, which had been sealed up under the order, or such portions thereof as the court should direct. The court held that the application that every- thing sealed up should be unsealed could not be acceded to, and that it was necessary for the plaintiff to establish by particular instances his right to compel the defendants to unseal. A list of particular documents was then prepared and brought before the judge, who directed certain scheduled items to be unsealed, but refused the rest of the application : — Held, on appeal, that the plaintiff was not entitled to a general unseal- ing of the documents. li. 7. THE AFFIDAVIT. Conclusiveness of — Grounds on which Inspec- tion ordered.] — Where a party claims privilege against the production of documents, on the ground that they support his own title and do not relate to that of his opponent, his affidavit must be taken as conclusive, unless the court can see from the nature of the case or of the docu ments that the party has misunderstood the effect of the documents. Attorney- General v. Emerson (10 Q. B. D. 191), distinguished. Moberts v. Oppenkeim, ante, col. 650. 'The defendants in an affidavit of documents, made pursuant to Ord. XXXI. r. 12, disclosed a copy of an extract from a letter written by a person not a party to the action to one of the directors of the defendant company. The defen- dants refused to produce the same, on the ground that it was a confidential letter from a person not a party to the action, and on a summons to inspect being taken out, filed an affidavit to the effect that the document related only to their case and did not tend in any way to support the plaintiffs', or impeach their own case : — Held, that as there was nothing in the document itself to disclose the matter of its contents, the affidavit of the defendants was conclusive, and inspection must be refused. Attorney- General v. Emerson (10 Q. B. D. 191), distinguished. Bulmmi v, Young, 49 L. T. 736 ; 31 W. E. 766— D. See also Jones v. Andrews, supra. Joint or Separate Custody — Husband and Wife.] — A husband and wife sued as co-plaintiffs in respect of an alleged breach of trust by the trustees of their marriage settlement. The wife had a life estate for her separate use, and sued without a next friend. An order was made that the plaintiffs should file an affidavit stating "whether they or either of them" had in the possession or power " of them or either of them," 653 BISGOYEBY— Documents. 654 any documents relating to the matters in ques- tion. They filed an affidavit admitting the possession of various documents, which they scheduled, and going on to say, " We have not now, and never had in our possession, custody, or power, or in the possession, custody, or power of any other person or persons on our behalf, any deed, &c., other than and except the docu- ments set forth in the said schedule " : — Held, that the plaintiffs must be ordered to file a farther and better af&davit, for that an affidavit relating only to documents in the joint custody of the husband and wife did not comply with the order, and that the order was right in requir- ing them to answer as to documents in the pos- session of either of them. Fendall v. 0' Connell, 29 Ch. D. 899 ; 54 L. J., Ch. 756 ; 52 L. T. 553 ; 33 W. E. 619—0. A. Striking out for Prolixity.] — Although there is no rule of court specially giving power to the court to take pleadings or affidavits off the file for prolixity, yet the court has an inherent power to do so in order to prevent its records from being made the instruments of oppression. Where, however, an affidavit of documents was of op- pressive length, but it appeared to the court that delay and expense would be caused by filing a fresh one, the court permitted it to remain on the file, but ordered the party filing it to pay the costs of it. Hill v. Hart-Davis, 26 Ch. D. 470 ; 53 L. J., Ch. 1012 ; 51 L. T. 279—0. A. Document found after Affidavit filed.] — It is the duty of a party in an action who, after filing an affidavit of documents, discovers a document of which his opponent has a right to have in- spection, but which is not disclosed in the schedule, to inform his opponent of the dis- covery, either by supplementary affidavit or by notice. Mitchell v. Barley Main Colliery Com,- pany, 1 C. & E. 215 — Hawkins, J. Kon-compUance with Order — Incapacity aris- ing after Writ — Leave to add next Friend.] — Where, after writ issued, the plaintiff became incapable of transacting business, and his brother, on his behalf, made an affidavit of documents, and answered interrogatories, the defendant took out a summons to dismiss the action for non-compliance with orders to make an afH.davit of documents, and to answer inter- rogatories ; the plaintiff then took out a sum- mons for leave to amend by adding a next friend : — Held, that the defendant was not entitled, under rule 21 of Ord. XXXI. of the Bules of Court, 1883, to have the action dis- missed. The action still subsisted, and the plaintiff must have leave to amend by adding a next friend ; the plaintiff to pay the costs of both summonses. Cardwell {Lord') v. Tomlin- son, 54 L. J., Oh. 957 ; 32 L. T. 746 ; 33 W. E. 814— V.-O. B. Compliance with Order after issue of Writ of Attachment, but before Enforcement.] — A writ of attachment was issued against the defendant in an action for his contempt in not complying with an order of the court to make and file an affidavit of documents relating to the matters in question in the action. After the issue of the writ of attachment, but before it was enforced, the order was duly complied with by the defendant, and immediate notice of such compliance was given to the plaintiffs' solicitors. The defendant was nevertheless ar- rested and imprisoned : — Held, that the arrest was altogether irregular; and that it was the duty of the plaintiffs' solicitors to have stayed the enforcement of the writ of attachment. Guy V. HancooTt, 56 L. T. 726— Kay, J. Proceedings on Attachment.] — See At- tachment (Persons). 8. THE DEPOSIT. Dispensing with — Discretion of Judge.] — A judge has no discretion to dispense with the deposit required by Ord. XXXI. r. 26, before application for discovery or delivery of inter- rogatories. Boarder v. I/indsay, 34 W. E. 473 — D. A party to a cause is not entitled to obtain as a matter of right an order to administer interro- gatories without making a deposit under Eules of the Supreme Court, Order XXXI. rr. 25, 26, merely because the other party consents to it. The judge at chambers has upon an application of that kind a discretion, and in the exercise of that discretion may order the deposit to be made, notwithstanding that the party to be interrogated is ready to dispense with a deposit. Aste v. Stumore, 13 Q. B. D. 326 ; 53 L. J., Q. B. 82 ; 49 L. T. 742 ; 32 W. E. 219 ; 5 Asp. M. 0. 175 — 0. A. In an action where the defendants were charged with fraud, which the court considered to require strict investigation, and where the security for costs under Order XXXI. r. 26, on delivering interrogatories, would have amounted to between i5l. and 601. ; the court, on proof of the plain- tiff's want of means, dispensed with the security. Smith, In re. Smith v. Went, 50 L. T. 382 ; 32 W. E. 512— Kay, J. Documents in which Parties have a Common Interest.] — Order made that the plain- tiff in an action of contract should have inspec- tion of the written contract which was in the defendant's possession without giving the security for costs required by Ord. XXXI. rr. 25, 26. The provisions of Ord. XXXI. rr. 25, 26, with regard to security for the costs of discovery do not apply to an application for production of a docu- ment in which both parties to the action have a common interest. Brown v. Ziell, 16 Q. B. D. 229 ; 55 L. J., Q. B. 73— D. Several Defendants.] — Where in a co- ownership action, brought by a managing owner against his co-owners for an account to recover a balance, the plaintiff sought to inter- rogate the defendants who were numerous, and to be dispensed from making the usual deposit, the defendants contending that a deposit ought to be made in respect of each defendant interro- gated, the court ordered a deposit of ol., and 10s. for each additional folio over five and no more. The Whiehham, 53 L. T. 236 ; 5 Asp. M. 0. 479— Butt, J. 9. COSTS OF INSPECTION. Not between Party and Party.]— As between party and party, no costs can be allowed m respect of notices to inspect documents, or of 655 DI S C VE RY— Interrogatories. 656 attendance for the purpose of inspecting docu- ments, at the office of the solicitor to whose client the documents belong. The discretion given to the taxing-master by Ord. LXV. r. 27 (17) — repeated from Rules of Supreme Court, 1875 (Costs), schedule, r. 15 — only applies to taxation of costs as between solicitor and client. WicMeed v. Higgs, 54 L. J., Ch. 967 ; 52 L. T. 428 — Pearson, J. II. INTEEEOGATOEIES. 1. TO AND BY WHAT PERSONS. " Opposite Parties " — Third Party to Plain- tiff.] — Persons who are served by a defendant with a third party notice are not thereby made defendants within the definition of the word in the Judicature Act, 1873, s. 100, nor do they become defendants by putting in a defence. But where persons had been served with a third party notice by the defendant for the purpose of claiming an indemnity, and had obtained an order (1) that the question of indemnity .should be tried after the trial of the action ; and (2) that they should be at liberty to appear at the trial of the action and oppose the plaintiff's claim so far as they were affected thereby, and for that purpose to put in evidence and cross- examine witnesses :— Held, that the third parties had been placed by the order in the position of defendants, and had a right to examine the plaintiff by interrogatories under Order XXXI. r. I. JSden 7. Weardale Iron and Coal Com- pany, 35 Ch. D. 287 ; 56 L. J., Ch. 400 ; 56 L. T. 464 ; 35 W. R. 507— C. A. By Plaintiff to Third Party.] — Persons who had been served by a defendant with a third party notice for the purpose of claiming indemnity, obtained an order (1) that the ques- tion of indemnity should be tried after the trial of the action ; and (2), that they should be at liberty to appear at the trial of the action, and oppose the plaintiff's claim so far as they were affected thereby, and for that purpose to put in evidence and cross-examine witnesses : — Held, that the third parties had put themselves in the position of " opposite parties " to the plaintiff ; and the plaintiff had a right to examine them by interrogatories. MacAllister v. Bisliop of Moehester (5 C. P. D. 194) followed. Men v. Weardale Iron and Coal Company, 34 Ch. D. 223 ; 56 L. J., Ch. 178 ; 55 L. T. 860 ; 85 W. R. 235— C. A. Between Plaintiffs and co-Plaintiffs and Defendants and co-Defendants. J — Discovery by way of interrogatories may be allowed to a plaintiff from a co-plaintiff, or to a defendant from a co-defendant, in cases in which there may be rights to be adjusted between them respectively. Shaw v. Smith, 18 Q. B. D. 193 ; 56 L. J., Q. B. 174 ; 56 L. T. 40 : 35 W. R. 188 — C. A. Discovery cannot be allowed to a defendant from a co-defendant with a view to show that the co-defendant and not the defendant is liable to the plaintiff, as where a defendant, sued for subsidence under the plaintiff's land, proposes to inspect the mines of a co-defendant in adjoining land. Brown v. Watkins (16 Q. B. D. 125) ex- plained, lb. 2. IN WHAT MATTERS. Suit for Nullity of Marriage.] — In a suit for nullity of maraage, the court has power to give leave to administer interrogatories between the parties to the suit ; for suits of that kind were formerly within the jurisdiction of the Ecclesi- astical Courts, which had power to allow interro- gatories to be administered between the parties, and now all the jurisdiction of the Ecclesiastical Courts as to suits for nullity of marriage (includ- ing matters of practice and procedure) is vested in the Probate, Divorce, and Admiralty Division. And, further, even if the power to allow inten-o- gatories to be administered between the parties did not otherwise exist, it would be conferred upon the Probate, Divorce, and Admiralty Divi- sion by the Supreme Court of Judicature Act, 1873 ; for at the time of passing that statute the Superior Courts of Common Law and the Court of Chancery had power to allow interrogatories to be administered between the parties to a suit ; and by s. 16, all the jurisdiction of those courts, including the ministerial powers and authorities incident thereto, was transferred to and vested in the High Court of Justice, and by s. 23 the jurisdiction transferred to the High Court may (so far as regards procedure and practice) be exercised in the same manner as it might have been exercised by any of the courts whose juris- diction has been transferred. Harvey v. Zuve- Un, 10 P. D. 122 ; 54 L. J., P. 1 ; 33 W. R. 188 — C. A. In a suit for nullity of marriage the court has power to order interrogatories. Muston v. Smith, 9 P. D. 57 ; 32 W. R. 596— Hannen, P. Petition for Bevocation of Patent.] — A peti- tion was presented under s. 26 of the Patents, Designs, and Trade Marks Act, 1883, to procure the revocation of a patent, on certain grounds, which were stated in the particulars of objec- tions. A summons was subsequently taken out, in pursuance of leave specially reserved, for directions as to the further conduct of the peti- tion, asking that the petitioners might be at liberty to deliver to the respondent interroga- tories, or, in the alternative, that the respondent might be ordered to furnish particulars of his answer to the petition. The question was whether the practice as to delivering interroga- tories applied to a petition of this kind : — Held, that interrogatories, might be delivered upon the usual terms of making a deposit. Saddan's Patent, In re, 54 L. J., Ch. 126 ; 51 L. T. 190 ; 33 W. R. 96— Kay, J. Action for Penalties — Common Informer.] — The general rule is that in an action for penal- ties by a common informer, leave will not be given to the plaintiff to administer interroga- tories. Martin v. Treacher, 16 Q. B. D. 507 ; 55 L. J., Q. B. 209 ; 54 L. T. 7 ; 34 W. R. 315 ; 50 J. P. 356— C. A. Sec nlso ante, col. 645. What is — Breach of Copyright.] — By 3 & 4 Wm. 4, c. 15, s. 2, if any person shall, during the continuance of the sole liberty of represent- ing a dramatic piece, represent such piece with- out the consent of the author, every such offender shall be liable for each and every such represen- tation to the payment of an amount not less than 40s. : — Held, that this section did not impose a 657 DISCOY^'RY— Interrogatories. 658 penalty upon the offender so as to preclude the plaintiff, in an action to recover the specified amount, from administering interrogatories to him. Adams v. Batley, 18 Q. B. D. 625 ; 56 L. J., Q. B. 393 ; 56 L. T. 770 ; 35 W. E. 437— C. A. As to Documents.]— &f Hall v. Truman and J^ieholl V. Wheeler, post, col. 662. 3. APPLICATION FOR ORDER- TIME. Summons — Striking out for Irrelevancy — Grounds for Application.] — On the hearing of a summons before the chief clerk for leave to de- liver interrogatories under Rules of the Supreme Court, 1883, Order XXXI., r. 1, he may consider the general relevancy or irrelevancy of the pro- posed interrogatories, and may, if a copy of the interrogatories is produced to him on the sum- mons, strike out such as are irrelevant : but he is not at liberty to settle or amend, in the way of condensation, the form of any particular interrogatory that is in itself relevant. Swabey v. Dovey, 32 Ch. D. 352 ; 55 L. J., Ch. 631 ; 54 L. T. 368 ; 34 W. R. 510— V.-C. B. Upon an application for leave to exhibit in- terrogatories under Rules of Supreme Court 1883, Ord. XXXI., r. 1, it is not necessary for the applicant, nor can he be required, to produce a copy of the proposed interrogatories ; and if produced to the chief clerk on the hearing of the summons he has no right to settle them, or to decide upon the relevancy or irrelevancy of ■specific interrogatories and allow or disallow them accoi-dingly. All that is necessary to sup- port the summons is a statement by the appli- cant — ^not necessarily in writing — as to the general nature and scope of the proposed in- teiTogatories, so as to enable the Court to decide whether he is entitled to the whole or any part of what he asks. Maitin v. Spicer, 32 Ch. D. 592 ; 54 L. T. 598 ; 34 W. R. 589— V.-C. B. Leave given though Tendency to Criminate.] — Leave to administer interrogatories ought not to be refused on the ground that it is plain from the nature of the case that they must necessarily criminate the party interrogated, who cannot answer them without admitting that he has been guilty of felony. Harvey v. LoveMn, supra. By Defendant before Delivery of Particulars ly Plaintiff.]— In an action by the executors of a married woman against her husband to recover furniture said to be part of her separate estate, delivery by the plaintiffs of particulars of and relating to the exact chattels claimed, was post- poned until the defendant had stated on oath which of the articles had belonged to his late wife, on the ground that the defendant must know what furniture his wife had, whereas the plaintiffs, as mere executors, had not the means of knowing. Millar v. Harper, 38 Ch. D. 110 ; 57 L. J., Ch. 1091 ; 58 L. T. 698 : 36 W. R. 454— C. A. General Allegation of Fraud — Principal and Agent— No particulars.] — The plaintiff alleged that he had employed the defendant as a stock- broker, but that the defendant had in many of the transactions dealt with himself as principal, ,and had also charged the plaintiff with moneys not paid. The plaintiff delivered interroga- tories asking for the particulars of the dealings on behalf of the plaintiff and the names of the persons with whom the defendant had dealt and the amounts paid. The defendant refused to answer on the ground that the plaintiff was not entitled to this information until after decree : — Held (dubitante Fry, L.J.), that though there were no particulars of the frauds alleged, the plaintiff was entitled to discovery in order to enable him to give details of the frauds alleged. Whyte V. Ahrens (26 Ch. D. 717) discussed. Per Bowen L.J., Ord. XIX., r. 6, is a rule of pleading only. LeitcK v. Abbott, 31 Ch. D. 374 ; 55 L. J., Ch. 460 ; 54 L. T. 258 ; 34 W. R. 506 ; 50 J. P. 441— C. A. 4. WHAT ADMISSIBLE. " Matter in question in the Cause " — Order XXXI., r. 1.] — The plaintiff, as executrix of A. M., sued the executor of H. M., alleging that H. M. had received 6,000Z. in trust for A. M., had invested it in securities producing at least five per cent, per annum, and applied the interest to his own purposes. The plaintiff claimed payment of the 6,000Z. with interest at five per cent. The defendant professed igno- rance as to the matters- alleged, and set up several alternative defences : that H. M. had not received the 6,000Z. ; that if he had, he paid it to A. M. ; that if he received it A. M. agreed that he should retain it for his own use as a gift from her ; that if he received it, it was agreed between him and A. M. that he should retain it in satisfaction of a claim which he had against her ; that A. M. was at her death indebted to H. M. in an amount exceeding the 6,000?. The plaintiff delivered interrogatories for the exami- nation of the defendant. By interrogatory 18 he asked particulars as to the way in which the 6,000?. had been invested by H. M., and what was the rate of interest on the investments, and how the income had been disposed of? By interrogatory 23 he asked whether the defendant was not the brother of H. M., and whether during the period of the transactions referred to in the statement of claim the defendant had not been the solicitor and agent of H. M., and lived with him, and acted as his confidential agent with respect to his property, and become ac- quainted with all his affairs ? The defendant, in answer to interrogatory 18, stated that H. M. had invested the 6,O0OZ., and applied the income to his own purposes, and declined to answer further, and he declined to answer inter- rogatory 23 at all : — Held, that as the plaintiff was not seeking to follow the investments of the 6,000?., the defendant was not bound to give the particulars of such investments ; but that as the defendant did not admit the receipt of five per cent, interest, he was bound to answer as to the amount of interest that had been received, as it would enable the court at the hearing to make an immediate decree for payment of principal and interest if the plaintiff established the trust. Parher v. Wells (18 Ch. D. 477) distinguished. Held, further (dissentiente Cotton, L.J.), that the defendant was not bound to answer inter- rogatory 23, for that an interrogatory asking in substance whether the defendant had not been in such a position that he must know whether the allegations in the statement of claim were 659 DISGOYEKY— Interrogatories. 660 true or false, did not relate to any matter in question in the cause within the meaning of Ord. XXXI., r. 1. Morgan, In re, Owen v. Morgan, 39 Ch. D. 316 ; 60 L. T. 71 ; 37 W. E. 243— C. A. As to Damages.] — Interrogatories as to the amount of the damages claimed are only ad- missible, as a rule, where the defendant does not directly traverse the plaintiff's claim, but has either paid money into court or can show that such claims are prima facie extorlSonate. Clar?ie v. Bennett, 32 W. R. 550— D. Action to recall Probate — Undue lufln- enoe.] — The plaintiff sued to recall probate on the ground that the testator was not of sound mind, and that the will was obtained by the undue influence of the defendants, two of whom were the executors, and the third universal legatee. The plaintiff delivered interrogatories for the examination of the defendants, asking what sums they had received from the testator by way of payment for services, loan or gift, and whether the universal legatee had since the death of testator made over any and what part of the property to the other defendants. The defendants declined to answer these inter- rogatories as irrelevant : — Held, that the inter- rogatories must be answered, the period in the first interrogatory being limited to three years. Molloway, In re, Tonng v. Holloway, 12 P. D. 167 ; 56 L. J., P. 81 ; 57 L. T. 515— C. A. Defence of plane administrayit.] — In an action against a surviving trustee and the executors of a deceased trustee for alleged breaches of trust, the executors pleaded plene administravit, and the plaintiffs having there^ upon administered interrogatories, seeking for particulars of their testator's real and personal estate, and their administration of it, the executors' answer was merely a repetition of their defence : — Held, insufficient, and that the plaintiffs were entitled to a further and more specific answer. St. George v. St. George, 19 L. K., Ir. 225— M. E. Questions as to Defendant's Title.] —The plaintiffs brought an action for an account of coal worked by the defendants under certain closes of land, and an injunction to restrain any further working, and by their statement of claim alleged that they were entitled .to the minerals under the said closes of land. The defendants denied the title of the plaintiffs, but did not set up any title in themselves. The plaintiffs administered interrogatories to one of the defendant firm, one of which required him to set forth " under or by what, if any, convey- ance, assignment, lease, licence, or authority, the defendant firm claim to be entitled to the coals and minerals underlying the closes in question, giving the dates and names or parties to any such conveyance, assignment, or lease, and the names of the person or respective persons from whom they allege that they obtained any such licence or authority, and giving the date of any such licence or authority, and stating whether the same be in writing or not." The defendant objected to answer such inter- rogatory, whereupon the plaintiffs applied for and obtained an order for a further answer, but the order did not direct to what extent the answer should go : — Held, on motion to dis- charge the order, that the order was right. Cayley v. Sandycroft Brick, Tile, and Colliery Company, 33 W. R. 577— Pearson, J. Commonable Bights — Discovery of Plaintiffs Evidence.]— B. and N., two landowners in the parish of M., brought an action for a declaration that a piece of land formed part of M. Common, and to establish commonable rights thereover. N. sued as owner in fee of a beerhouse and three cottages, and the plaintiffs pleaded the exercise of the rights claimed from time immemorial. The defendant was the lord of an adjacent manor, and his defence was that the piece of land never formed part of M. Common, but was common land forming part of his own manor ; that if the plaintiffs ever had any rights of common thereon such right had been extin- guished ; that some of the rights could only be used in respect of ancient tenements, and that the beerhouse and three cottages in respect of which N. sued had no land held therewith. After the defence had been delivered, the defendant administered interrogatories to the plaintiffs, asking in effect — (1.) How long the plaiutiffs had been owners or proprietors of their properties, and for what estates, what was the tenure thereof, and whether those lands were within the limits of any and what actual or reputed manors, and whether any such premises were ancient mes- suages, and whether the beerhouse and three cottages had any and what lands appurtenant thereto or held therewith. (2.) Whether the plaintiffs or their predecessors in title, as pro- prietors or occupiers of any lands in M., or under any other alleged title, had exercised the rights claimed upon any and what part of M. Com- mon, or upon any and what part of the piece of land in question. (3.) The plaintiffs were asked to set forth particulars of their exercise of such rights, and whether they did so by any licence or in consideration of any and what pay- ment. The plaintiffs objected to answer these interrogatories on the ground that they related exclusively to their own title and to the evidence they should adduce at the hearing. Upon a sum- mons that the plaintiffs might be ordered to make a sufficient answer : — Held, that the plaintiff N. must answer so much of the first interrogatory as asked, whether the beer- house and cottages had any lands appurtenant thereto or held therewith, because he had not pleaded that they had, and the defendant had pleaded that they had not ; but that the rest of the interrogatories need not be answered, be- cause they were in effect directed to the dis- covery of the evidence by which the plaintiffs intended to prove their case at the hearing. JSade V. Jacobs (3 Ex. D. 334) and Hoffmann v. Postill (4 L. R., Ch. 673) explained. -Lowndes V. Davies (6 Sim. 468) dissented from. Bidder V. Bridges, 51 L. T. 818 ; 33 W. R. 272— Kay, J. On appeal by the defendant the question was left to the judges of the Court of Appeal as ar- bitrators to settle what part of the interroga- tories should be answered, and the plaintiffs were directed to answer further parts of them. S. C, 29 Ch. D. 29 ; 54 L. J., Ch. 798 ; 52 L. T. 455 ; 33 W. R. 792— C. A. Libel — Comparison of Hand- writing.] — In order to prove that the defendant was the 661 DISC OTElBY— Interrogatories. 662 writer of a libellous letter, he may be in- terrogated as to whether or not he was the writer of another letter addressed to a third person, — as leading up to a matter in issue in the cause, and therefore relevant. Jones v. Richards, 15 Q. B. D. 439— D. Newspaper — Name of Correspondent — Manuscript.] — In an action against the pub- lisher of a newspaper for a libel contained in a letter from a correspondent and in a leading article thereon, the defence was that the al- leged libel consisted of an accurate report of certain public proceedings and fair comment thereon : — Held, that the plaintiff was not en- titled to interrogate the defendant as to the names of the persons on whose information the reports were based, or the name of the corre- spondent who wrote the letter, or as to the original manuscript of the letter. Hennessy T. WrigM, 36 W. R. 879— C. A. As to Publication in Newspaper.] — In an action for libel in which the defendant tra- versed the publication ; denied that the words were published of the plaiutifE, or in the defama- tory sense alleged ; and pleaded fair comment, the plaintifi exhibited interrogatories, asking whether the defendant published the libel in two Irish papers specified in the interrogatories, and whetlier the words were not published of the plaintiff. The defendant was also interrogated (No. 4) as to whether he did not publish the words complained of " in the London Times newspaper, or some other^nd what newspaper ? " "When did such publication take place ? " The defendant answered all the interrogatories in the one answer as follows : " That in bona fide comment on the conduct and language of the plaintifi, and in reference to matters of public interest, I caused to be printed and published of and concerning the plaintiff and others in the several newspapers in the said interrogatories mentioned the words in such interrogatories referred to, honestly believing the same to be true and without malice " : — Held, that except as to the fourth interrogatory, the answer was sufficient and was not objectionable, on the ground of its qualified form, but that a further answer should be given to No. 4, giving the date of the alleged publication. Malone v. Fitz- gerald, 18 L. R., Ir. 187— Ex. D. Names of Persons, though probably Wit- nesses.] — In an action for libel the defendant pleaded that the libel was true. The sub- stance of the libel was that the plaintiff had fabricated a story to the effect that a certain circular letter purporting to be signed by the defendant had been sent round to the defend- ant's competitors in business. The plaintiff had iu speeches and letters stated that he had seen a copy of the alleged letter, that two of such letters were in existence in the possession respectively of a firm of bankers and a firm of manufacturers at Birm- ingham, and that his informant in the matter was a solicitor of high standing at BiiTQingham. In interrogatories administered by the defend- ant the plaintiff was asked to state the name and address of his informant, in whose hands he had seen the copy of the letter, and the names and addresses of the persons to whom the letter had been sent, and in whose possession the two letters existed ; but he refused to do so on the ground that he intended to call those persons as his witnesses at the trial : — Held, that the defen- dant was entitled to discovery of the names and addresses of such persons as being a substantial part of facts material to the case upon the issue on the plea of justification. Marriott v. Chamberlain, 17 Q. B. D. 154 ; 55 L. J., Q. B. 448 ; 54 L. T. 714 ; 34 W. R. 783— C. A. As to Documents — Sufficient Affidavit.] — After a defendant has made a sufficient affidavit of documents, the plaintiff will not be allowed to administer to him a general roving interroga- tory as to documents in his possession, the effect of which would be to compel the defendant to make a further affidavit as to documents. There may possibly be cases in which, after a sufficient affidavit as to documents has been made, the court will allow the plaintiff to deliver an inter- rogatory as to some specific document or docu- ments, but whether this shall be allowed is a matter within the discretion of the judge in each particular case, and, though his decision can be appealed from, the Court of Appeal will not readily reverse it. Jones v. Monte Video Gas CoTwpany (5 Q. B. D. 556) explained. Rail v. Tnman, 29 Ch. D. 307 ; 54 L. J., Ch. 717 ; 51 L. T. 586— C. A. In an action for the recovery of land the de- fendant claimed that certain documents men- tioned iu his affidavit of documents were privileged from production, on the ground that they supported his title and did not contain any- thing impeaching his defence or supporting the plaintiff's case. The defendant's affidavit was sufficient on the face of it. The plaintiffs pro- posed to administer interrogatories to the de- fendant for the purpose of showing that the documents in question supported the plaintiff's title, and therefore that they were not privileged from production : — Held, that the interrogatories were inadmissible. Jones v. Monte Video Gas Company (5 Q. B. D. 556) and Sail v. Truvian (29 Ch. D. 307) followed. Nicholl v. Wheeler, 17 Q. B. D. 101 ; 55 L. J., Q. B. 231 ; 34 W. E. 425— C. A. Particulars of Infringement of Patent.] — ^An action was brought by the registered owner of two letters patent for similar inven- tions, dated in 1883 and 1884, for infringement of both patents. The plaintiff discontinued the action so far as related to the patent of 1884. The defendants then delivered interrogatories as to what constituted infringements of both pa- tents, and they asked him as to documents in his possession relating to the preparation of the specifications filed under both patents. The plaintiff declined to answer on the ground that the particulars of infringement had been suffi- ciently stated by him, and as to the documents, that they were confidential communications between himself and his solicitor and counsel, and that such documents were privileged ; and that as regarded any documents relating to_ the patent of 1884, the interrogatories were irre- levant to the issue. The plaintiff's solicitor had also acted as his patent agent : — Held, that the plaintiff was not obliged to give any further answer as to the particulars of breaches ; that the plaintiff's answer as to documents was in- sufficient, as it did not distinguish between the communications between him and his solicitor as such, and communications between him and his 663 UI S C VE EY — Interrogatories. 664 solicitor in his character of patent agent ; the former class only being privilegcil. MoseUy v. Victoria Rubber Cnmpany, 55 L. T. 482 — Chitty, J. .-.. PRIVILEGE. Solicitor and Client — Solicitor Defendant in Action.] — In an action for libel contained in a circular, the defendants justified, giving full par- ticulars of the justification. The plaintiff ad- ministered interrogatories as to certain commu- nications referred to by the defendants, which they objected to answer upon the ground that by so doing they would disclose facts and informa- tion obtained by thom in confidence and acting in their capacity as solicitors for a client : — Held, that the defendants were not bound to further answer the interrogatories, the privilege claimed not being their privilege, but that of their clients. Prnctor v. Smilex, 55 L. J., Q. B. 327— C. A, AflSrming 55 L. J., Q. B. 467— D. Professional Confidence.] — The privilege from discovery resulting from professional con- fidence does not extend to facts communicated by the solicitor to the client which cannot be the subject of a confidential communication be- tween them, even though such facts have a rela- tion to the case of the client in the action. A plaintiff interrogated a defendant as to whether interviews and correspondence had not, between certain dates, taken place between their respec- tive solicitors, and also between the defendant's solicitor and a third person, in reference to an agreement the specific performance of which it was the object of the action to enforce. The defendant declined to answer the intc'rrogatory, so far as it related to commitnications between his solicitor and other persons, on the ground that he had no personal knowledge, and the only information he had was derived from confidential communications between him and his solicitor in reference to his defence in the action : — Held, that he must make a further answer. Foahes v. Webb, 28 Oh. D. 287 ; 54 L. J., Ch. 262 ; 51 L. T. 624 ; 33 W. R. 249— Kay, J. See also Cases, ante, I. 4. Tendency to Criminate.] — Leave to administer interrogatories ought not to be refused on the ground that it is plain from the nature of the case that they must necessarily criminate the party interrogated, who cannot answer them without admitting that he has been guilty of felony ; he may, however, decline to answer them. Harvey v. Loiiekin, lU P. D. 122 ; 54 L. J., P. 1 ; 33 W. R. 188— C. A. 6. THE ANSWER. Sufficiency of.] — The duty of the court with reference to answers to interrogatories is now regulated by Ord. XXXI. rr. 10, II, and limited to considering the sufficiency or insufficiency of the answer, i.e., whether the party interrogated has answered that which he has no excuse for not answering — and only in the case of insuffi- ciency can it require a further answer. Lyell v. Kennedy, 27 Ch. D. 1 ; 53 L. J., Ch. 937 ; 50 L. T. 730— C. A. Semble (per Bowen, L.J.), that an embarrass- ing answer to interrogatories may be dealt with as insufficient. IV. A party interrogated may, on a question of sufficiency, refer to his whole affidavit in answer to interrogatories, and is not restricted to the passages dealing with any particular interroga- tory, and all embarrassment to the interrogating party is now obviated by the provisions of Ord. XXXI. r. 24 ; but he must not endeavour to import into an admission matter which has no connexion with the matter admitted. lb. Belief founded on Privileged Communi- cations,] — A party to an action cannot be comr pelled to answer interrogatories asking as to his knowledge, information, or belief with regard to matters of fact, if he swears that he has no knowledge or information with regard to those matters except such as he has derived from privileged communications made to him by his solicitors or their agents ; for since under those circumstances his knowledge and information are protected, so also is his belief when derived solely from such communications. Lyell v. Kennedy, 9 App. Cas. 81 ; 53 L. J., Ch. 449 ; 50 L. T. 277 ; 32 W. R. 497— H. L. (B.). The plaintiff having been interrogated as to his knowledge, information, and belief upon matters relevant to the defendant's case, answered that he had no personal knowledge of any of the matters inquired into ; that such information as he had received in respect of those matters had been derived from information procured by his solicitors or their agents in and for the purpose of his own case :— Held, that the answer was sufficient. lb. No Information except from Privileged Source.] — In an action for damage caused by the negligence of the defendants or their servants in the use of an engine, whereby sparks and red-hot cinders escaped from the engine and set fire to the plaintiff's buildings, the plaintiffs administered the following interroga- tory : " Have the defendants or any of their servants or agents any knowledge, information, or belief as to the cause of the fire in respect to the happening whereof this action is brought ? If yea, set out the same fully, with dates and all particulars. If any of the said servants or agents have communicated to the defendants such knowledge, information, or belief, let the defendants set out the substance of such com- munications, with dates and particulars." To this the defendants answered : " We have no information at all on the subject, save such as appears in the reports set out in the schedule to our affidavits, filed in this cause on the 28th May, 1884, and which by the judgment of the Divisional Court of the 7th July last were held to be privileged from production, which we decline to produce : — Held, that the answer was sufficient, as a further or better answer could not be given without disclosing the con- tents of privileged reports made to the de- fendants by their servants, which reports the defendants were not bound to disclose. London, Tilbury, and Southend Railway v. Kirk, 51 L. T. 599— D. Knowledge of Servant or Agent.] — In an action by owners of water mills to restrain a canal company, who had statutory power to take water froiri the river on which the plaintiffs' mills were situate, from wrongfully diminishing the quantity of water in the river, to the injury 665 DISOEDERLY HOUSE. 666 of the plaintiffs, the defendants interrogated the plaintiffs, and asked them to give a list of the days between specified dates on which they alleged that the working of their mill? was inter- fered with by the negligence of the defendants. The plaintiffs answered that they were unable to specify the particular days ; — Held, that this answer was sufficient, and that the plaintiffs were not bound to state whether they had made inquiries of their agents, servants, and work- men. BolcTtow V. Fisher (10 Q. P. D. 161) dis- tinguished. Rasbotham v. Shropshire Union Railways and Canal Company, 24 Ch. D. 110 ; 53 L. J., Ch. 327 ; 48 L. T. 902 ; 32 W. E. 117— North, J. Power to go behind Affidavit.] — Where in an answer to interrogatories the party interrogated declines to give certain information on the ground of professional privilege, and the privi- lege is properly claimed in law, the court wiU not require a further answer to be put in, unless it is clearly satisfied, either from the nature of the subject-matter for which privilege is claimed, or from statements in the answer itself, or in documents so referred to as to become part of the answer, that the claim for privilege cannot possibly be substantiated. Lyell v. Kennedy, 27 Ch. D. 1 ; 53 L. J., Ch. 937 ; 50 L. T. 730— C. A. The mere existence of a reasonable suspicion which is sufficient to justify the court in re- quiring a further affidavit of documents is not enough when a claim for privilege in an answer to interrogatories is sought to be falsified. 11. The defendant K. in his answer to interro- gatories objected to disclose certain information asked for by the plaintiff L. on the ground of professional privilege, which the court held pro- perly claimed in law. L. sought by reference to certain admissions in the answer itself, and from documents referred to in the interrogatories and answer, as well as from documents scheduled to K.'s affidavit of documents, to show that the information sought was obtained under circum- stances which negatived the claim of privilege, and sought a further answer : — Held, that no further answer should be required, as the admissions in the answer and in the documents referred to therein only raised a case of sus- picion at the most, which might be capable of explanation if K. were at liberty to make an affidavit. JJ. The court declined to decide how far, under the present practice, reference could be made, as against the interrogated party, to any document in his possession not referred to in his answer, but only scheduled to his affidavit of documents. /*. Irrelevant and Embarrassing.] — Where an interrogatory setting out a certain letter and asking whether the defendant had written such a letter or one to the same purport and effect at any time to any person, was answered by ninety folios of matter giving the whole circumstances of the case : — Held, that such an answer was irrelevant and embarrassing, although a reason- able and legitimate explanation of an answer to an interrogatory is relevant. I/yell v. Kennedy, 33 W. R. 44— D. Striking out — Prolixity.] — Where interroga- tories are unreasonably prolix, it is the duty of the court to strike them out under Order XXXI. r. 7. Gnimlii-ecU v. Parvy, 32 W. R. 558— C. A. Affirming, 49 L. T. 570 ; 5 Asp. M. C. 176 — D. Order for further Answer vivl voce.] — When a person interrogated has answered insufficiently and has been ordered to further answer by viva voce examination, he can only be required to give vivlH voce such an answer to the particular interrogatories mentioned in the order as would have been sufficient if it had been given by his affidavit in answer to interrogatories. The costs of any examination exceeding these limits must be paid by the party examining. Litchfield v. Jones, 54 L. .J., Ch. 207 ; 51 L. T. 572 ; 33 W. R. 251— Peareon. J. DISORDERLY HOUSE. Licence for Dancing. ] — Where dancing is not the principal part of a public entertainment, even though it is the principal part of a par- ticular performance in the entertainment, if that particular performance be not a principal part of the entertainment, a dancing licence is not required under 25 Geo. 2, c. 36, s. 2. Tay v. ~ "', 1 C. & E. 112— Cave, J. Brothel — Prosecution — Alternative Proce- dure.] — In a prosecution of a brothel-keeper under s. 13 of the Criminal Law Amendment Act, 1885, it is competent to the prosecutor either to proceed summarily under that act in- dependently of the earlier acts, or he may, at his option, comply with the preliminary steps speci- fied in s. 5 of 25 Geo. 2, c. 36, as amended by s. 7 of 58 Geo. 3, c. 70, and then become entitled to a reward. Kirwin v. Hincs, 54 L. T. 610 ; 50 J. P. 230— D. Having or keeping House for Performance of Stage Plays.] — The appellant was the owner and occupier of a building which he gratuitously allowed to be used on a few occasions for the performance of stage plays, to which the public were admitted on payment, for the benefit of a charity. The appellant had no licence for the performance of stage plays in such building : — Held, that he was rightly convicted of having or keeping a house for the public performance of stage plays without a licence, under 6 & 7 Vict, c. 61, s. 2. Slielley v. Bethell, 12 Q. B. D. 11 ; 53 L. J., M. C. 16 ; 49 L. T. 779 ; 32 W. R. 276 ; 48 J. P. 244— D. DISTRESS. When Protected in Bankruptcy.] — See Bank- E0PTCT, XI. 2. In Winding-up of Companies.] — See Com- pany, XI. 6. In other Cases.] Tenant. See Landlord and 667 DISTKICT EEGISTRY— DEAINAGE. DISTRICT REGISTRY. Petition to Wind-up — Bemoval of Cause to Xondon.]— Ord. XXXV. r. 16, provides that, " In any case not provided for by rules 13 and 14, any party to a cause or matter proceeding in a district registry may apply to the court or a judge, or to the district registrar, for an order to remove the cause or matter from the district registry to London, and the court, judge, or registrar may make an order accordingly, if satisfied that there is sufficient reason for doing so, upon such terms, if any, as shall be just." Circumstances under which an order for transfer to the High Court will not be made. Neath and Bristol Steamship Compam/y ., In re, 58 L. T. 180 — Kekewich, J. Administration Action — Taxing Officer.] — The ■court can, in its discretion, order the taxation of costs in an administration action, commenced and prosecuted in a district registry, to be made by the district registrar. The term "taxing ■officer "in rr. 3, 11, and 12 of Supreme Court Funds Rules, 1884, these rules being read in conjunction with Ord. LXV. r. 27, sub-s. 43, of Rules of Supreme Court, 1883, includes " district registrar," where the court has directed taxation to be made by that officer, and the paymaster is bound to act on the certificate of taxation of a ■district registrar, when the court, in the exercise of its discretion, has directed taxation in the district registry. The court, however, following Bay V. Whittalter (6 Ch. D. 734), will not, except under very special circumstances, direct the costs of an action commenced in a district registry to be taxed otherwise than by a taxing- master of the Chancery Division. Wilson, In re, Wilson V. Alltree, 27 Ch. D. 242 ; 53 L. J., Ch. 989 ; 32 W. B. 897— Chitty, J. DIVIDEND. See COMPANY. DIVORCE. See HUSBAND AND WIFE. DOCK COMPANY. See SHIPPING. DOCTOR. See MEDICINE. DOCUMENTS. Obtaining Discovery and Inspection of.] — See DiSCOVEEY. Action for Defacing Document as to Character.] — See Master and Sekvant. Order to Deliver up.] — See Solicitoe, V. 1. e, Other Points.] — See Deed. DOG. Carriage of Dogs.] — See Caeeiees. License for.] — See Revenue (Excise). Injuries caused by.] — See Animals. DONATIO MORTIS CAUSA. See WILL. DOMICIL. See INTERNATIONAL LAW. DOWER. See HUSBAND AND WIFE. DRAINAGE. Mortgage of Glebe by Vicar — Foreclosure Action — Parties.] — A vicar is a person having a limited interest within the meaning of s. 3 of the Landowners West of England and South Wales Land Drainage and Inclosure Companies Act, and may charge his glebe land thereunder. To a foreclosure action under such a mortgage the patron of the living is not a necessary party. Goodden v. Coles, 59 L. T. 309 ; 36 W. E. 828— Kekewich, J. Certificate of Inclosure Commissioners — Validity of Charge — Borrowing Powers.] — The River Dee Company was by act of parliament empowered to borrow upon mortgage of the lands of the company any sums not exceeding 25,0002. The company, however, borrowed more. After this the Lands Improvement Company, 669 EASEMENTS AND PEESCRIPTION. 670 having by its acts power to advance to land- owners money for the improvement of land, advanced to the River Dee Company 6,405Z., and by an order the Inclosure Commissioners purported to charge the lands of the River Dee Company with the repayment of that sum and interest by annual instalments : — Held, that the powers given by the Lands Improvement Com- pany's Acts did not override the restriction on the borrowing powers of the River Dee Com- pany, and that the charge on the lands of the River Dee Company was consequently invalid ; and that a clause in one of the Lands Improve- ment Company's Acts making the certificate of the Inclosure Commissioners conclusive evidence of the validity of a charge under the act did not render the charge valid in such a case. Wenlocli (Baroness) v. River Dee Company, 38 Ch. D. 534 ; 57 L. J., Ch. 946 ; 59 L. T. 485— C. A. land Drainage Charge — Priority.] — The General Land Drainage and Improvement Com- pany's Act, 1849, and the Lands Improvement Company's Act, 1853, each contained a section which provided that, upon the fi.nal order or certificate of the Inclosure Commissioners and the execution of the improvemeiits, the company should have a first charge upon the inheritance of the improved lands in priority over every other then existing or future charge. The com- pany of 1853 having executed improvements on land already subject to a charge in favour of the company of 1849, contended that the latter charge was displaced by theirs : — Held, that the two sections were not irreconcilable, and that the charge which was first in order of time was entitled to priority. Polloelt v. Lands Improvement Company. 37 Ch. D. 661 ; 57 L. J., Ch. 853 ; 58 L. T. 374 ; 36 W. R. 617— Chitty, J. Order to Bepair Sea Wall — Validity — Interest.]^The presentment of a jury at a court of sewers in 1861 found that the then owner of A.'s land was bound by reason of his tenure to Tepair a portion of the sea-wall fronting the land so as to prevent the influx of the waters. In 1881-2 the commissioners of sewers made orders upon A. as the owner of the land to repair this portion of the wall, it having been destroyed by an extraordinary storm and high tide. These orders were made "upon reading the presentment " of 1861. One of the commissioners who made the orders was person- ally interested as an owner of lands within the level ; — Held, that if the commissioners had made the orders under the powers of s. 33 of the Land Drainage Act, 1861 (24 & 25 Vict. c. 133) they must themselves have found as a fact A.'s liability ; that if they had exercised such a jurisdiction they would have been acting judicially, and that in that case the orders would have been invalidated by the fact that one of the commissioners was disqualified by reason of in- terest. Fohbing Commissioners v. Meg., 11 App. Oas. 449 ; 55 L. T. 493 ; 34 W. E. 721— H. L. (E.). Affirming 54 L. J., M. C. 89 ; 49 J. P. 404 — C.A. In Metropolitan District.] — See Metbopolis. DWELLINGS. Artizans' Dwellings.] — See Abtizans. DYING DECLARATION. See Criminal Law (Pbacticb). In other Places.] — See Health. EASEMENTS AND PRE- SCRIPTION. I. Rights op Way, 670. II. Light and Air, 675. III. Watekcoubsbs, 681. IV. Right op Support, 684. V. In otheb Cases, 686. I. RIGHTS OF WAY. Way of Necessity — Land taken Compnlsorily — Public Undertaking.] — A. and B. had respec- tively acquired interests under building agree- ments in two adjoining plots of land. A local board under their compulsory powers took half an acre, part of A.'s holding, and five acres, part of B.'s holding, for the purpose of sewage works, the necessary proceedings having been taken as against A. and B. in respect of their several interest, and against the reversioner C, in respect of the whole five and a half acres. The only way to the land taken, was a warple way over another part of A.'s building plot, which, for thirty years before the building agreements, had been used by the occupiers of both A.'s and B.'s land for purposes of cultivation, and since the building agreements had been used by A. for his own building purposes : — Held, that the local board had a right of way over the warple way for all necessary purposes in connexion with the sewage works. Serff v. Aeto7i Local Board, 31 Ch. D. 679 ; .55 L. J., Ch. 569 ; 54 L. T. 379 ; 34 W. R. 563— Pearson, J. Implied Grant — Way formed during Unity of Possession.] — Where, during unity of possession, a particular and defined way is formed and used over property which is afterwards severed and granted by che owner to different persons, the right of using the way as it is then used may pass by implication, although it be not a way of necessity, and although the general words of the conveyance are not sufficient to pass such a right. Brown v. Alabaster, 37 Ch. D. 490 ; 57 L. J., Ch. 255 ; 58 L. T. 265 ; 36 W. R. 155— Kay, J. 671 EASEMENTS AND PRESCRIPTION. 672 Grant by General Words — Implication — Streets not yet Formed.]— By a deed of convey- anoo land was conveyed to the respondents' pre- decessor in title, " the situation, dimensions, and boundaries whereof are particularly described in the map or plan drawn on these presents . . . together with all streets, ways, rights, easements, and advantages." The plan showed a piece of land at the intersection of " G. street " and " M. street," which were delineated communicating on a level. The land was in fact, at the date of the conveyance, waste building land on the out- skirts of a town, and neither of the streets had been made or dedicated to the public. The soil of the intended streets was the property of the vendor. Houses were built on the land fronting M. street, and both streets were made, and used as streets ; but the appellant company after- wards made a branch line passing under G. street, near the property in question, and thereby altered the level of that street, and cut off the access for horses and vehicles from M. street into G. street ; a means of access for foot- passengers remained : — Held, that the convey- ance granted to the purchaser a right of way from M. street into G. street, and that the alteration of levels had " injuriously affected " the land so as to entitle the respondents to com- pensation. Furness Sailway v. Cumberland Co-operative BvHiling Society, 52 L. T. 144 ; 49 J. P. 292— H. L. (E.). "Appurtenances."] — The plaintiff and defendant were tenants under the same landlord of adjoining farms near the sea-coast, to which a highway ran through the defendant's farm ; the plaintiff's farm communicated with the highway by a private road, which joined the highway at A. From a point on the plaintiff's farm and on the private road, an ancient lane ran to a spot on the highway nearer than A. to the sea-coast ; this lane was not only the nearest way from the plaintiff's farm to the sea-coast, but was also level, whereas the private road was steep and hilly. The lane, which was a formed roadway bounded on either side by turf banks and hedges, ran wholly through the defendant's land, except for a few yards where it started from the private road on the plaintiff's fai'm, but it had no communication on either side with the defendant's land, and was only open to the defendant's access at the point where it joined the highway ; it had been used for many years by the plaintiff, and had been from time to time repaired by him. Prior to 1873 the plaintiff and defendant were tenants from year to year of their respective farms ; in that year the landlord granted to the defendant a lease of his farm, which contained no reference to the lane, or to its user by the plaintiff ; but the soil of the lane was admittedly included in the admeasurements of the defendant's farm. In 1878 the landlord granted to the plaintiff a lease of his farm " and all houses, buildings, and appurtenances thereto belonging," in which no specific mention was made of the lane or of any right of way over it. The defendant having interfered with the plain- tiff's user of the lane : — Held, that the lease to the defendant did not amount to a demise of the soil of the lane free from the plaintiff's right of way, inasmuch as the lessor, not being in pos- session at the date of the lease, could not make such a demise without derogating from the grant to the plaintiff under which his then eScisting tenancy was constituted ; that there was an implied reservation of the right of way out of the defendant's lease ; and that the right of way over the lane passed to the plaintiff by the lease of 1878 under the word '-appurtenances." Thomas v. Owen. 20 Q. B. D. 225 ; 57 L. J., Q. B. 198 ; 58 L. T. 162 ; 36 W. E. 440 ; 52 J. P. 516— C. A. "Eight occupied or enjoyed as Parcel or Member" of Tenement granted.] — A railway company purchased, under the powers of their act, a piece of land on which was a stable. By the conveyance to the company the premises were granted together with all "rights, members, or appurtenances to the hereditaments belonging or occupied or enjoyed as part, parcel or member thereof." The vendor had many years previously made a private road from the highway to the stable over his own land for his own conve- nience, and had used it ever since ; the soil of this road was not conveyed to the company and no express mention of it was made in the con- veyance. The plaintiff refused to allow the company to use the road : — Held, that notvrith- standing the unity of possession of the stables and the private road at the date of the convey- ance to the company, a right of way passed to the company under the general words in the conveyance. Kay v. Oxley (10 L. E., Q. B. 360). and Watts v. Kelson (6 L. E., Ch. 166), followed! Bayley y. Great Western Railway, 26 Ch. D. 434 ; 51 L. T. 387— C. A. User of Bight of Way— Change.]— The fact of the stable having been purchased by a railway company for the purposes of their undertaking did not preclude them from claiming the right of way so long as they used the premises as a stable ; which they might lavrfuUy do till such time as they were required for the special pur- poses of the railway, or were sold as superfluous land. Whether the railway company would be entitled to claim the right of way after they had ceased to use the premises as a stable, and had converted them to some purpose connected with the railway, quaere. li. Prescription Act — "Person entitled to any Eeversion" — Bemainderman. ] — Where a right of way is claimed by virtue of forty years' en- joyment under the Prescription Act, 2 & 3 Will. 4, c. 71, the period during which the servient tenement has been vested in a tenant for life, with remainder in fee, cannot be deducted from the period of forty years' enjoyment, for the remainderman is " not a person entitled to the reversion expectant on a term " vrithin s. 8. Symonsy. Leader, 15 Q. B. D. 629 ; 54 L. J., Q. B. 480 ; 53 L. T. 227 ; 33 W. K. 875 ; 49 J. P. 775— D. User of Way at Long Intervals.] — In an action where a right of way was claimed under the Prescription Act (2 & 3 Will. 4, c. 71), s. 2, in respect of twenty years' user as of right, it appeared that the way had only been used by the party claiming it, the defendant, for the removal of wood cut upon an adjoining close. The wood was cut upon this close at intervals of several years ; the last cutting having been in the year in which the action was commenced, the one next previous fifteen years before, and the next at another interval of fifteen years. 673 EASEMENTS AND PRESCRIPTION 674 Between these intervals the road was occasion- ally stopped up, but the defendant used it as often as he wished while the wood was being cut : — Held, that there had not been an uninter- rupted enjoyment of the way for twenty years within the meaning of s. 2 of the Prescription Act which did not apply to so discontinuous an easement as that claimed. Hullins v. Vermy, 13 Q. B. D. 304 ; 53 L. J., Q. B. 430 ; 51 L. T. 753 ; 33 W. E. 5 ; 48 J. P. 580— C. A. Thinly-populated District — Evidence of User. ] — In an action claiming a public right of way over a track or natural mountain pass about fourteen miles long, running thi'ough a thinly- populated district of the Highlands of Scotland and connecting by the shortest route Braemar and Clova, it appeared from the evidence of user that the track in question had been used by the public on foot ; by drovers twice a year driving sheep from a market held at Braemar to one held near Clova ; that public subscriptions had been collected for a bridge in the line of the track ; that some distance up the disputed track there was an old mile-stone, and, that a proprietor in planting trees had specially left a space for the track : — Held, that the amount of user, having regard to the character of the district, was such as might have been expected if the track had been admittedly a public way and not the subject of mere tolerance, and that the evidence was sufficient to establish the right of way. Mao- pherson v. Scottish Rights of Way and Recrea- tion Society, 13 App. Gas. 744 — H. L. (So.) Non-user for long Period.] — According to the law of Scotland, the constitution of a public right of way does not depend upon any legal fiction, but upon the fact of user by the public as matter of right, continuously and with- out interruption for forty years. And the amount of user must be such as might have been reasonably expected if the road in dispute had been an undoubted public highway. Also, the user must be a user of the whole road as a means of passage from one terminus to the other, and must not be such a user as can be reasonably ascribed either to private servitude rights or to the licence of the proprietor. The continued exclusion of the public from the use of an alleged public road for thirty-seven years will not, perse, destroy a pre-existent right of public way unless it is maintained for the prescriptive period of forty years, but it is strong evidence that no such public right ever existed. Maim v. Brodie, 10 App. Gas. 378— H. L. (Sc). Obstrnction— Extent of Eight.]— The defen- dant, the owner of a building estate, conveyed to the predecessor in title of the plaintifE one of the plots of ground on the estate, and in the conveyance granted to him the right for himself, his heirs, and assigns, and his and their families, tenants, servants and workpeople, with or with- out horses, cattle, carts and carriages, to pass over the several roads made or to be made through the estate; in the same manner and as fully as if the same roads were public roads. Two of the roads on the estate were forty feet wide, twenty feet in the middle being gravelled for cart and carriage traffic, and there being a strip of grass ten feet wide on either side. The plaintifi, in common with other residents on the estate, was accustomed to walk along these grass strips to and from his house, which was built on the plot of ground so conveyed as above stated. The defendant caused six ditches or trenches, each about fifteen inches wide and ten inches deep, to be cut completely across the strips of grassland at the sides of the road near the plaintifi's house, the earth taken out of the ditches being banked up at the edges of the ditches, and the plaintifE's Sassage along the strips was thereby rendered ifficult and dangerous. The plaintifE claimed an injunction against the defendant to restrain the continuance of the impediments to his right of way. The defendant contended that the plain- tifE's right of way was the same as that of the public along a highway, and that the public ways had similar ditches and trenches cut through the grass at their sides for drainage and similar purposes, and it was proved that in many rural roads in the district such ditches or " grips " were made : — Held, that the right of the public to use a highway extends to the whole road, and not merely to the part used as via trita ; that these ditches, if cut on ^ public highway, would have amounted to a nuisance and obstruction ; and that, therefore, as the plaintiff had the same rights over the road as the public would have over a public highway, he was entitled to the injunction. Nicol v. Beawmont, 53 L. J., Gh. 853 ; 50 L. T. 112— Kay; J. Lease — ■' Heirs or Assigns " — Begrant of Easement by Lessee— Uerger in Beversion.] — D. and C., co-owners of an estate, by deed de- mised for a term of 1000 years a strip of lanij intersecting the estate for the purpose of making a canal, with the proviso that nothing should prevent D. and G., " their heirs or assigns," from using any of the land demised or any stream of water flowing over the same, or from granting any wayleaves across the same for the carriage at goods, &o., or for any other purpose in like manner as they could have used the same in case the lease had not been granted, but so as not to injure the canal. The canal was made, and the estate was afterwards partitioned by deed be- tween D. and G., the reversion in a portion of the canal being conveyed to G., and the adjoin- ing lands on each side of that portion being con- veyed to D. C. afterwards conveyed the rever- sion in that portion of the canal to the lessees. D. as owner of the lands intersected by that portion of the canal having claimed to grant wayleaves, &c., and build a bridge across it for the purpose of making an access from one side to the other : — Held, that upon the true con- struction of the lease the proviso operated as a covenant with D. and C. as owners of the rever- sion and not as owners of the adjoining lands ; that this covenant ran with the reversion ; and that when the reversion in that portion of the canal became vested in the lessees there was a merger, and the rights under the proviso were extin- guished as to that portion of the canal. Dynevoi' \Lord') V. Tennant, 13 App. Gas. 279 ; 57 L. J., Oh. 1078 ; 59 L. T. 5 ; 37 W. E. 193— H. L. (E.) Action for Interference — Statement of Claim.] — In an action for interfering with the plaintiffs' right of way to a certain quarry, the plaintiffs alleged, in the first paragraph of their statement of claim, that they were entitled to a right of way from the public highway through a certain gateway along a certain passage to the said quarry, and back again from the said quarry Z 675 EASEMENTS AND PEESCKIPTION 676 to the public highway, for themselves, their agents, servants and licensees, on foot and with horses, carts and carriages, at all times of the year ; and in the second paragraph they alleged that they were entitled to a right of way from the public highway through a certain gateway along a certain passage to the said quarry, and back again from the said quarry to the public highway, for themselves, their agents, servants and licensees, on foot and with horses and carts, at all times convenient and necessary for the working of the said quarry, and for removing stones, gravel and other material therefrom. On motion to set aside the first and second para- graphs of the statement of claim :— Held, that the statement of claim was sufficient. Kenmare iLord') V, Casey, 12 L. E., Ir. 374— Q. B. D. II. LIGHT AND AIR. Implied Seservation — Notice — Building Scheme — Merger of Lease — Surrender.] — By seven simultaneous leases seven plots of lands marked respectively A, B, C, D, E, F, and G, and forming together one square block, were demised by the owner to J. with a ground plan on each lease, and with covenants for the erec- tion and maintenance of buildings upon each plot according to certain plans. The leases were granted with the view to the erection upon the whole block of one large edifice, of which the several parts and the internal arrangements were to be connected together for a common use and occupation ; so, however, as to be separ- able (if desired) into seven separate buildings. J. being in the occupation of the whole, while the buildings were being erected, mortgaged 0, F, and G, by a sub-lease which recited the build- ing scheme and the original leases of C, F, and G, and contained stipulations for the completion of the buildings on C, F, and G. After the buildings had been substantially completed, J. mortgaged E by a deed which recited the lease of B and assigned the buildings thereon, subject to the covenants in the lease, to one who had notice of the general plan of the buildings. J. then mortgaged B. On J.'s bankruptcy the several mortgagees obtained foreclosure decrees in respect of B, C, and E respectively : — Held (Lord Blackburn dissenting), that though there was no express reservation of the right to light, yet, looking at the plans, the covenants in the original leases, and the mortgage deeds, the mortgagees of C and E respectively were by reasonable implication precluded from interfer- ing with the light to the windows in B which looked out upon C and E respectively, and might be restrained accordingly in an action by the mortgagee of B : — Held also, that the mort- gagee of B could maintain such an action, although he had surrendered the lease of B and taken a fresh lease from the original lessor ; for, without deciding what effect the merger of the original lease might have, whenever the lease of B came to an end either by surrender, forfeiture, or otherwise, the original lessor would have the Same rights to light as the mortgagee would have had if the original lease had subsisted. Russell v. Watts, 10 App. Gas. .590 ; 55 L. J., Ch. 158 ; 53 L. T. 876 ; 34 W. E. 277 ; 50 J. P. 68— H. L. (B.). Sale of Plots of Land.]— Semble, by the Earl of Selborne, that if on a sale and convey- ance of land adjoining a house to be built by the vendor, it is mutually agreed that one of the outer walls of that house may stand wholly or partly within the verge of the land sold, and shall have in it particular windows opening upon and overlooking the land sold, and if the house is erected accordingly, the purchaser cannot afterwards build upon the land sold, so as to prevent or obstruct the access of light to those windows. 11. Part Performance — Parol Agreement.] — The plaintiff and defendant, the owners of adjoining houses, being about to rebuild, entered into a verbal agreement that the plaintiff should pull down a party-wall and rebuild it lower and thinner, and that each party should be at liberty to make a lean-to skylight with the lower end resting on the party-wall. The plaintiff rebuilt the party- wall and erected a lean-to skylight on his side of it as agreed ; the defendant also erected a skylight on his side, but instead of a lean-to, so shaped it as to obstruct the access of light to the plaintiff's premises more than the agreed lean-to skylight would have done : — Held, that the effect of the agreement was to give to each party an easement of light over the other's land ; and that the plaintiff, having per- formed the agreement on his part, was entitled to have it enforced on the part of the defendant. McMams v. Cnolie, 35 Ch. D. 681 ; 56 L. J., Ch. 662 ; 66 L. T. 900 ; 35 W. R. 754 ; 51 J. P. 708 —Kay, J. Implied Grant — Vendor — Equitable Owner.] — The owner (subject to a mortgage in fee) of a house and a plot of land adjoining, first leased the house, then contracted to sell the land to the defendant, and afterwards contracted to sell the house subject to the lease to a person under whom the plaintiff claimed. The next step was a conveyance of the house by the owner and his mortgagee to the plaintiff subject to the lease, which was followed by a, conveyance (also by the owner and his mortgagee) of the land to the defendant. The plaintiff subsequently recovered possession of the house from the lessee for breach of condition : — Held, that no grant of light to the house could be implied over land which the owner had contracted to sell before the sale or conveyance of the house, and that s. 6, sub-s. 2, of the Conveyancing Act, 1881, did not apply. Beddington v. Atlee, 35 Ch. D. 817 ; 56 L. J., Ch. 655 ; 56 L. T. 514 ; 35 W. R. 799 ; 51 J. P. 484— Chitty, J. Derogation from Grant — Building Scheme — Intention to he Implied.] — The maxim that a grantor shall not derogate does not entitle a grantee of a house to claim an ease- ment of light to an extent inconsistent with the intention to be implied fi-om the circumstances existing at the time of the grant and known to the grantee. Birmingham Banking Company V. Ross, 38 Ch. D. 295 ; 57 L. J., Ch. 601 ; 59 L. T. 609 ; 36 W. R. 914— C. A. Affirming 52 J. P. 421— Kekewich, J. The corporation of a town granted a lease to the plaintiffs of a piece of land and a newly erected building " with the rights, members, and appurtenants to the said premises belonging." The building abutted on a passage twenty feet wide, which the corporation agreed to keep open, and on the other side of the passage were old 677 EASEMENTS AND PEESCEIPTION 678 buildings about twenty-five feet high. The cor- poration demised the laud on the other side of the passage to the defendant, who erected on the site of the old buildings a house eighty feet high, which materially interfered with the plaintiffs' light. The land on both sides of the passage was part of a larger piece of land laid out by the corporation under a building scheme for the improvement of the town : — Held, that there was no grant, express or implied, in the lease to the plaintiffs of a right to uninterrupted light to the new building ; that the obligation on the corporation not to obstruct the plaintiffs' light which was to be implied from the relation in which they had placed themselves to the plaintiffs by granting them the lease, must be measured by the circam^tances existing at the date of the lease and known to both parties ; that having regard to the fact that the plaintiffs knew that the land was being laid out for build- ing, and that they bad stipulated that there should be a passage twenty feet wide adjoining the new building, they had no right to complain of the obstruction caused by the defendant's house, and an injunction was refused. lb. The rule, that a man who grants a house with lights cannot erect new buildings so as to ob- struct those lights, applies to the case where the grantor purposely leaves a strip of land inter- vening between the house and the lands retained. Prescription Act — Beservation of Sight to Obstruct — " Agreement or Consent."] — ^A land- owner granted a lease to the plaintiff of a house and laud with their appurtenances, except rights, if any, restricting the free use of any adjoining land, or the appropriation at any time thereafter of any such land for building or other purposes, obstructive or otherwise. More than twenty years after this lease the subsequent lessee of an adjoining piece of land under the same landowner commenced to build on it in such a way as to obstruct the plaintiff'^s light. The plaintiff having brought an action and moved for an injunction : — Held, that the ex- ception of any right restricting the free use of the adjoining land did not operate as an agree- ment or consent on the part of the lessee that the owners of the adjoining land might always have a right to obstruct the access of light to the plaintiff's house within the exception in the 3rd section of the Prescription Act, and, there- fore, that the plaintiff had acquired an absolute prescriptive right to the light and was entitled to an injunction. MitcJiell y. Cantrill, 37 Ch. D. 56 ; 57 L. J., Ch. 72 ; 58 L. T. 29 ; 36 W. B. 229— C. A. User — Windows with Shutters occa- sionally opened—" Actually enjoyed."] — The right to access of light is acquired under s. 3 of the Prescription Act for an opening used in such a manner as suits the owner's convenience for the passage of light. Therefore, in the case of windows with movable shutters, which are opened only occasionally at the owner's pleasure, .the right is being " actually enjoyed " under 8. 3, and there is no such interruption of access as will under s. 4 prevent the right being ac- quired at the end of the statutory period. ■Cooper V. Straker, 40 Ch. D. 21 ; 58 L. J„ Ch. 26 ; 69 L. T, 849 ; 37 W. E. 137— Kay, J, "Other Building" — Dwelling-house or Workshop.] — The words " other building" used in the Prescription Act (2 & 3 Will. 4, c. 71), s. 3, in connexion with any "dwelling-house, workshop — " mean some building of a like character with a dwelling-house or workshop, and will not necessarily include every structure which may be a building for the purposes of the Metropolitan Building Acts. Accordingly, a permanent structure used for storing and season- ing timber and showing it to customers, which consisted of upright baulks of timber or standards fixed in stone bases built on brick piers, with cross-beams and diagonal iron braces, divided into floors or stagings with open unglazed ends or apertures between the uprights, and which served for drying the timber and also for admitting light, is not a "building" within s. 3, so as by twenty years' uninterrupted enjoyment of the access and use of light to and for the apertures, to have acquired an absolute and indefeasible right thereto. Harris v. De Pinna, 33 Ch. D. 238 ; 54 L. T. 38 ; 50 J. P. 308— Chitty, J. Uninterrupted Access — Definite Channel,] — In order to acquire an absolute and indefeasible right to light under s. 3, it must be shown not only that there has been an uninterrupted access of light to the building in respect of which the easement is claimed, but also that the light has reached the building by one and the same channel for the statutory period. Without therefore deciding whether the particular structure was a " building " within the Prescription Act, s. 3 : — Held, that as from the nature of the structure and the mode of carrying on business, timber would be so piled as from time to time to bloolf up one or other of the apertures so that the plaintiffs could not prove that there had been an uninterrupted access of light by any one aperture for the statutory period, their claim to an ease- ment failed. Harris v. De Pinna, 33 Ch. D. 238 ; 56 L. J., Ch. 344 ; 54 L. T. 770 ; 50 J. P. 486— C. A. Access of Air — Acquirement — Unity of Possession. ] — A right by way of easement to the uninterrupted access of air not coming by any definite channel but over the general unlimited surface of the alleged servient tenement cannot be acquired under the Prescription Act, s. 2, by mere enjoyment for the statutory period ; and the fact that the alleged dominant and servient tenements were both held under a common lessor, either of itself, or at any rate when coupled with the fact that the lease of the servient tenement was the earlier, negatives any claim to the easement as arising out of implied covenant. lb. Cone of Light.] — The right acquired under the Prescription Act, s. 3, is a right to the access and use of the whole or a substantial part of the particular cone of light which has passed for the statutory period over the servient to the dominant tenement. Scott v. Pape, 31 Ch. D. 554 ; 55 L. J., Ch. 426 ; 54 L. T. 399 ; 34 W. R. 465 ; 50 J. P. 645— C. A. " Access "—" The Eight thereto."] — The word "access" in section 3 of the Pre- scription Act refers not to the access through the aperture of the dominant tenement but ^ z 2 679 EASEMENTS AND PEESCEIPTION 680 to the freedom of passage over the servient tenement, although the aperture which admits the light into the dominant tenement defines the area which is to be kept free over the servient tenement. " The right thereto " means the right to the same access and use of light to and for any building. lb. — ^Per Fry, L. J. Alteration in Bomiuaut Tenement — Plane of Windows — Proof of Identity.] — The Prescrip- tion Act does not require any identity, structural or otherwise, in the building, which after the twenty years is to enjoy the right, with the building which has acquired the right ; but the right, although not in gross, but one which must be claimed in respect of a building, may be claimed in respect of any building which is enjoying the whole or a substantial part of the light which passed into the dominant tenement through the old aperture. Consequently, no alteration in the plane of the windows 'of the dominant tenement, either by advancing or setting back the building, will destroy the right so long as the owner of the dominant tenement can show that he is using through the new apertures in the wall of the new building the same, or a substantial part of the same, light which passed through the old apertures into the old building. But the right to relief may be lost even where there is no sub- stantial alteration if the owner of the dominant tenement has by his alteration so confused the evidence that he cannot prove the identity of the light. Ih. S., in 1872, pulled down a building in the east wall of which were ancient lights, and erected on the site a new building with larger and more numerous windows. No record was preserved of the positions or dimensions of the ancient lights, but it was found as a fact that substantial por- tions of six of the new windows corresponded with three of the ancient lights. The east wall had been advanced by distances varying from 2 ft. 3 in. to 13 in., the effect of which was slightly to alter the plane of the new windows : — Held, that the alteration made by S. did not amount to an abandonment of his right, and that the plain tiil was entitled to an injunction to restrain any obstruction of so much of the six new windows as corresponded with the three ancient lights, li. The mere alteration of a building containing ancient lights without evidence of intention to abandon does not imply an abandonment of the statutory right, under the Prescription Act, 2 & 3 Will. 4, c. 71, to the access and use of light to and for any building which may be substituted for the original building ; the inten- tion to abandon the right must be clearly estabUshed by evidence. The nature of the statutory right to the access of light discussed. Scott V. Pape (31 Oh. D. 554), considered. Greenwood v. Hornsey, 33 Ch. D. 471 ; 55 L. J., Ch. 917 ; 65 L. T. 135 ; 35 W. R. 163— V.-C. B. In rebuilding a house, which had an ancient light in its ground floor front-room, the front wall, which originally stood out beyond the general building line 4 feet at one end and 7 feet at the other, was set back into the general building line ; and in the new front wall was placed a window the position of which corre- sponded to a great extent with the position of the ancient light in the old front wall. The new room was about the same frontage breadth as the old, but included little more than half the site of it, viz., a depth of 9 feet at one end, and less than 4 feet at the other :— Held, that the right to the ancient light had not been lost. Bullers v. DicUnson, 29 Ch. D. 155 ; 54 L. J., Ch. 776 ; 52 L. T. 400 ; 33 W. R. 540— Kay, J. Interim Injunction — Balance of Convenience.] — The plaintiiEs being the owners of an ancient building which had numerous windows, pulled it down and rebuilt it. A few of the windows in the new house included the space occupied by ancient windows, but were of larger dimensions ; several others included some portion of the space occupied by ancient windows ; and in some cases the spaces occupied by ancient windows were entirely built up in the new house. The defen- dants commenced to build a house on the oppo- site side of the street, which i£ completed according to the plans, would materially inter- fere with the light coming to the plaintiff's windows. On a motion for an interim injunc- tion the court, holding that the plaintiffs had shown an intention to preserve, and not to abandon, their ancient lights, and that there was a fair question of right to be tried at the hearing, and considering that the balance of convenience was in favour of granting an in- junction rather than of allowing the defendants to complete their building with an undertaking to pull it down if required to do so, granted an injunction till the hearing. Newson v. Pender, 27 Ch. D. 43 ; 52 L. T. 9 ; 33 W. R. 243— C. A. Injunction or Damages — Discretion of Court — Lord Cairns' Act. ] — In exercising the discre- tion given by s. 2 of Lord Cairns' Act, to award damages in substitution for an injunction, iu the case of a substantial interference with a plaintiff's ancient lights, the court will not, when the result of the defendant's buildings would be, if they were allowed to continue, to render the plaintiff's property absolutely useless to him, compel the plaintiff to sell his property out and out to the defendant. But, if the in- jury to the plaintiff will be less serious, and his property will remain substantially useful to him, if the defendant's buildings are permitted to continue, the court may exercise its discretion by awarding the plaintiff damages in lieu of an injunction, and for the purpose of exercising that discretion the court will take into consideration the nature and situation of the property, e.g., the circumstance that it is situate in the centre of a large city, such as London. Ayngley v. Glover (18 L. R., Eq. 544), Krehl v. Bwrrell (7 Ch. D. 551), and Smith v. Smith (20 L. R., Eq. 500), considered. Holland v. Worley, 26 Ch. D- 578 ; 54 L. J., Ch. 268 ; 50 L. T. 526 ; 32 W. K. 749 ; 49 J. P. 7— Pearson, J. The discretion given to the court by s. 2 of Lord Cairns' Act (21 & 22 Vict. u. 27), to award damages in substitution for an injunction in the case of a substantial interference with a plain- tiff's ancient lights, is a discretion to be exercised according to the facts of each particular case. Where the plaintiff has, at the trial, established his statutory right as against a defendant who has erected a building causing a substantial inter- ference with that right, the court will not com- pel him to accept damages or compensation instead of an injunction, especially where the defendant has, during the progress of the action. 681 EASEMENTS AND PEESCRIPTION . 682 given an undertaking to pull down, if so ordered at the trial. Holland v. Worley (26 Ch. D. 578) not followed. Greenwood v. Hornsey, supra. III. WATERCOURSES. Abstraction of Water by Non-riparian Owner — ^Absence of Damage — Eight of Action.] — The owner of land not abutting on a river, with the licence of a riparian owner, took water from the river, and after using it for cooling certain ap- paratus returned it to the river unpolluted and undiminished : — Held, that a lower riparian owner could not obtain an injunction against the landowner so taking the water, or against the riparian owner through whose land it was taken. Kmisit v. Great Eastern Railway, 27 Ch. D. 122 ; 54 L. J., Ch. 19 ; 51 L. T. 862 ; 32 W. R. 885— C. A. Artificial Stream — Bights of Riparian Owner.] — Observations on the rights which can be acquired by a riparian owner in an artificial stream. Ih. Reservation of, in Lease — Non-interfer- ence by Lessor — Unity of Possession — Severance — Implied Grant.] — Lands, on which were •■ third person were each occupiers of a separate flat of the house rented by the landlord, and aU three used the stairs, hall-door, and yard in common, the revising barrister having de- cided that the claimant was not an inhabitant occupier, but a lodger :— Held, that on the facts, the onus lay on the claimant of showing that he was an inhabitant occupier and not a lodger, and that he had failed to do so. Held also, that the manner in which other houses in the street were occupied was not material to the question, as each claimant's case must be de- cided upon its own facts. Campbell \. C'hamiers, 20 L. R., Ir. 355— C. A. Occupation as Owner or Tenant — Per- miasive user of Boom.] — During the qualifying year, and for some time previously, a separate room in the dwelling-house of claimant's father was allotted by him to the claimant, who slept in and occupied the room, separately and exclu- sively for his own purposes, as his own. The claimant's father was sole tenant of the pre- mises, and had control of the door and of the rest of the house : — Held, that the claimant was not entitled to the franchise. Clarhe v. Bucliancm, 20 L. R., Ir. 201— C. A. Constructive Besidence — Freeholder.] — The appellant, who claimed to be registered as a voter for the city of Exeter, had a bedroom kept for his exclusive uge in his father's house in Exeter. During the qualifying period he went to London in quest of employment, and having obtained a temporary situation in London he remained there for two months and then re- 706 turned to his father's house in Exeter. He remained in Exeter three weeks and then went back to London, and obtaining employment there did not return to Exeter during the rest of the qualifying period : — Held, that the facts did not show a constructive residence in Exeter during the qualifying period within the meaning of the Reform Act, 1832 (2 & 3 "Will. 4, c. 45), s. 31. Beal v. Exeter {Town Clerli), 20 Q. B. D. 300 ; 57 L. J., Q. B. 128 ; 58 L. T. 407 ; 36 W. R. 507 ; 52 J. P. 601 ; 1 Fox, 31— D. Service Franchise— Municipal Vote.] — Occu- pation of a dwelling-house by virtue of an office, service, or employment within the meaning of the Representation of the People Act, 1884 (48 Vict. c. 3), s. 3, is no qualification for the muni- cipal franchise. W Clean v. PricUard, 20 Q. B. D. 285 ; 58 L. T. 337 ; 36 W. R. 508 ; 52 J. P. 519 ; 1 Fox, 94— D. BeligiouB Community — Bedroom, consti- tuting " Dwelling-house."] — Each teacher in a college conducted by a religious community had, as such, during the qualifying period, the exclu- sive use of a separate bedroom in the college by virtue of his office or employment as a teacher in the college, which was managed by a resident principal, under the supreme control of the superior-general of the community, who himself lived in Paris. The revising barrister having found that each bedroom so occupied constituted a " dweUing-house " for the purpose of the fran- chise, and was not inhabited by the person by whom the teachers were employed, or under whom they served : — Held, that the teachers were entitled to the franchise. Striilwig v. ITalse (16 Q. B. D. 246) followed. Alexander V. Burke, 22 L. R., Ir. 443— C. A. Gardener occupying Bedroom over Coach- house.] — Where W.'s gardener, during the quali- fying period, exclusively occupied a bedroom over W.'s coach-house, in which bedroom he took his meals, which were prepared by W.'s cook, and sent to him from W.'s house, the coach- house containing W.'s carriages, and being situate in a detached walled yard, separated from his house by an avenue, but included in the grounds surrounding it : — Held, that the gardener was entitled to the franchise. JEToUy v. Burhe, 22 L. R., Ir. 463— C. A. Separate Bedroom — Shop Assistants.] — The claimant, a shop assistant, had, during the qualifying period, by virtue of his employment, the sole use of a bedroom in a dwelling-house belonging to his employers, in which were a number of other bedrooms occupied by other persons in the same employment. The claimant and all the other persons residing in the house had their meals in a common room, of which they each had the joint use, in addition to the separate use of their respective bedrooms. The employers exercised a general control over the house, and enforced such control by means of a resident caretaker, but not otherwise : — Held, that each assistant who had the sole use of a bedroom under the above circumstances had obtained the service franchise by virtue of s. 3 of the Representation of the People Act, 1885. StriMing v. Halse, 16 Q. B. D, 246 ; 55 L. J., Q. B. 15 ; 54 L. T. 268 ; 49 J. P. 727 ; 1 Colt. 409— D. . . A A 707 ELECTION hAW—Parlimientary. 708 Occupation of Booms in Workhouse.] — The industrial trainer of a workhouse occupied two rooms in the workhouse building. The master of the workhouse resided in other rooms, and another room was set apart for the use of the guardians who transacted business therein. It was part of the master's duty to lock the workhouse gates at a certain hour, and to report to the guardians if the industrial trainer was out after that time : — Held, that the master of the workhouse was not a person under whom the trainer served, within the meaning of 48 Viet. c. 3, s. 3 ; that the guardians could not be said to reside in the workhouse ; and that the trainer was entitled to the franchise. Adams V. Ford or Fox, 16 Q. B. D. 239 ; 55 L. J., Q. B. 13 ; 53 L. T. 666 ; 34 W. E. 64 ; 49 J. P. 711 ; 1 Colt. 403— D. Separate Bedroom — Joint use of Sitting room. ] — H., a servant, occupied exclusively, by virtue of his service, a furnished bedroom in a dwelling-house belonging to his master, and had in common with another young man the use of a sitting-room in the same house. All the furni- ture belonged to the master, who did not reside in the house, but had free a;ccess at all times to every portion of it except H.'s bedroom, and had access to it whenever he asked for the key, which he had a right to demand whenever he chose ; the bedrooms were made up by a charwoman who was paid by the master and did not reside on the premises : — Held, that H. was entitled to the franchise. JETassoii v. Cham- lens, 18 L. K., Ir. 68— C. A. B. was foreman of a shop and place of business in which a number of young men were employed. By virtue of that employment he and they lived in a separate house in which he had a bedroom that he occupied exclusively. He and the other employes took their meals in a common sitting- room, and the only resident in the house was a servant paid by the employer to attend to the occupants ; K. had a latchkey for the hall door and had also charge of the other keys, and it was his duty to see that the doors were locked and the occupants within doors every night : — Held, that E. was entitled to the franchise, n. Coachman living over Stable.] — C. as his employer's coachman occupied a room over the stable and was treated as a domestic servant. The stable was in the employer's yard and was a part of the curtilage of the dwelling-house — the house and yard being all included under the separate number in the poor-rate book ; there was a separate gateway and gate from the yard into a back lane, and also a wicket leading from the yard into the lane. The gate and wicket formed the only access to the yard except by going through the employer's house, and were under her control. Another of the servants cleared out C.'s rooms : — Held, that C. was not entitled to the franchise. lb. Soldier occupying Quarters.] — ^A non- commissioned officer in the service of the Crown claimed the parliamentary franchise as the in- habitant occupier of a dwelling-house in respect of rooms occupied by him as his quarters in barracks. He had inhabited the rooms, which consisted of a bedroom and sitting-room, during the qualifying period, subject, however, to cer- tain regulations and powers of superior officers' incident to military service, such, for instance, as the power of entry by the commanding officer at any time, and by other superior officers for the purpose of preserving order, and by certain officers at stated times for the purpose of inspec- tion of the rooms, the power of the commanding officer to forbid any person to enter or leave the barracks at any time, and the obligation to be in his quarters at a stated hour every evening. The Crown supplied certain necessary articles of furniture for the rooms, the rest of the furniture being the claimant's own. The rooms formed part of one of the blocks of buildings situate within the barrack inclosure, the remaining rooms in the block being occupied by other non- commissioned officers, some of whom were superior in rank to the claimant, and the senior of whom was bound to preserve order in the block, and would be entitled to enter the claimant's rooms for that purpose. The colonel commanding lived in a house situate within the walls of the barracks : — Held, that the claimant was entitled to the franchise under the 3rd sec- tion of the Representation of the People Act, 1884, on the ground that he had inhabited a dwelling-house within the meaning of that sec- tion, and that no person under whom he served had inhabited such dwelling-house. Afkimon V. Collard, 16 Q. B. D. 254 ; 55 L. J., Q. B. 18 ; 53 L. T. 670 ; 34 W. R. 75 ; 50 J. P. 23 ; 1 Colt. 375— D. Compulsory Absence on Duty — Militiaman.] — A non-commissioned officer on the staffi of a militia regiment resided with his family in a house within a borough. During the annual training of the regiment he was absent from the borough twenty-six days of the qualifying year, but while so absent his house continued to be occupied by his wife, family, and furniture. With the leave of his superior officer he returned at intervals during the annual training to his house in the borough, and could have returned there every night had the distance been less, as his duties did not require his attendance : — Held, following Ford v. Barnes (16 Q. B. D. 254) and Spittall V. Brooh (18 Q. B. D. 426), that occupa- tion, under the circumstances, was broken. Dnnoglme v. Brooh, 57 L. J., Q. B. 122 ; 58 L. T. 411 ; 1 Fox, 100— D. A private in a militia regiment was compul- sorily absent from his residence for training daring part of the qualifying year. While at training he could not leave the regiment without breach of military discipline : — Held, that he was not entitled to the parliamentary franchise as an inhabitant occupier. Martin v. Sanrakan, 22 L. R., Ir. 452— C. A. Non-commissioned Officers. ] — Where votes were claimed by persons in military ser- vice, the claimants, non-commissioned officers, had been absent for twenty-one days during the qualifying period from their quarters on duty elsewhere, and could not return without leave, hut during such absence, in one case the claimant's wife and family, and in the other his furniture, remained in the quarters which were retained for him : — Held, that it not sufficiently appearing in those cases that there had been any construc- tive inhabitancy of the rooms by the claimants during the twenty-one days when they were in fact absent, they were not qualified under 709 ELECTION IjKW— Parliamentary. section 3 of 48 Vict. c. 3. Ford v. Barnes, 16 Q. B. D. 254 ; 55 L. J., Q. B. 24 ; 53 L. T. 675 ; 34 W. E. 78 ; 50 J. P. 37 ; 1 Colt. 396— U. The appellant, a non-commissioned officer, resided with his family in barracks, situate within a borough, in separate rooms allotted to him by the quartermaster-general. During twenty-seven days of the qualifying year he was compulsorily absent from the borough, but while so absent his name was retained on the strength of the regimental dep6t in the monthly returns to the War Office, and the rooms continued to be occupied by his furniture and his family ; but he himself could not (unless by leave, which he hid obtained for one or two days) return to the borough without being guilty of a breach of duty : — Held, following Ford v. Barnes (16 Q. B. D. 254), that the appellant had not occupied the rooms in the barracks during the qualifying period, and that he was not entitled to be registered as a voter for the borough. Spittall v. Brook, 18 Q. B. D. 426 ; 56 L. J., Q. B. 48 ; 56 L. T. 364 ; 35 W. R. 520 ; 1 Fox, 22— D. Compulsory Absence — Servant at Hotel.] — The claimant was tenant of a house in which his family resided, but by the terms of his employ m.ent, as a servant of an hotel, the claimant was obliged to remain in the hotel for six days and six nights in each week, the remaining d and night in each week being spent by him in his own house : — Held, that the claimant was entitled to the franchise in respect of the house. M'Kendriclt v. Buchanan, 20 L. R., Ir. 206— C. A, Absence of ITndergraduates from Uni- versitieB.] — The undergraduates of Oxford and Cambridge are not permitted to reside in their rooms during the vacations, which comprise nearly six mouths of the year, without special leave from the college authorities, who are ac- customed to let and otherwise make use of their rooms during their absence : — Held, that such compulsory absence amounted to a break of residence disqualifying them for the exercise of the franchise. Tanner v. Carter; Banlts v. Mansell, 16 Q. B. D. 231 ; 55 L. J., Q. B. 27 ; 53 L. T. 663 ; 34 W. R. 41 ; 1 Colt. 435— D. Successive Occupation.] — A claim to the parliamentary franchise may be sustained by combining a series of occupation of dwelling- houses during the qualifying period — (a) partlj' by virtue of service, and partly under ordinary tenancies or (b) wholly by virtue of service. 'foi-ish V. Clark, 18 L. R., Ir. 285— C. A. Area divided into two Constituencies.] — G. claimed a vote for the borough of Lewisham in respect of the occupation of two houses in immediate succession, the first house being situated at Beckenham, and the second at Lower Sydenham. Before the passing of the Redistri- bution of Seats Act, 1885, both Beckenham and Lower Sydenham were included in the west division of the county of Kent ; but by that act Beckenham became included in the Sevenoaks division of the county, and Lower Sydenham became included within the area of the Parliamentary borough of Lewisham, which borough was then first created : — Held, that G. was entitled to be registered as a voter for the borough of Lewisham by virtue 710 of s. 17 of thi; Redistribution of Seats Act, 1885. B.nvii v. Steele, 55 L. J., Q. B. 36 ; 1 Colt. 458— D. Rates unpaid — Owner liable— ITo notice to Occupier.] — A claimant is not entitled to the franchise as a rated occupier where the rates, payable in respect of the qualifying premises have not been paid, though the owner, and not the occupier, is the person liable to pay the rates, and though no notice of the rate being in arrear was given to the occupier, as required by the 30 & 31 Vict. c. 102, s. 28. Clarke v. Buchanan, 20 L. R., Ir. 244— C. A. Arrears accrued previously to Qualifying Year.] — A person claiming the county franchise as a rated occupier is not entitled to be registered unless he has paid on or before the next previous 1st July, aU poor-rates due by him in respect of the qualifying premises and not merely the rates assessed during the preceding calendar year. Clarke v. Torish, 18 L. R., Ir. 60— C. A. Medical Belief — Uncertificated Midwife.] — The wife of the appellant, being near her con- finement, applied to the relieving officer of the union for an order for the attendance of a medical man. The guardians authorized the relieving officer to give her an order for such attendance, but she was in fact attended during her confinement by an uncertificated midwife, who was sent to her and paid by the relieving officer : — Held, that the relief afforded to the wife was "medical assistance " within 48 & 49 Vict. 0. 46, s. 2, and that the appellant was not disqualified from being registered as a parlia- mentary voter. Hoiieyhone v. Hamhridge, 18 Q. B. D. 418 ; 56 L. J., Q. B. 46 ; 56 L. T. 365 ; 35 W. R. 520 ; 51 J. P. 103 ; 1 Fox, 26— D. Parochial Belief — Employment by Guardians during prevalence of Distress.] — The appellant and others had, during a portion of the qualify- ing period, and at a time when great distress prevailed, been employed by the board of guardians of the union in which they resided to break stones, and had received payment for their work. The payments received had not been in any way commensurate with the amount of work done, but with the wants of each person employed ; and had varied according to the number of children belonging to such person : — Held, that the payments so made constituted relief given to the persons employed ; and that they were therefore disqualified from being registered by reason of their having been in receipt of parochial relief within s. 36 of the Representation of the People Act, 1832. Magar- rill V. Whitehaven Overseers, 16 Q. B. D. 242 ; 55 L. J., Q. B. 38 ; 53 L. T. 667 ; 34 W. R. 275 ; 49 J. P. 743 ; 1 Colt. 448— D. Payment for Funeral.] — Application for a receipt of provision, under 29 & 30 Vict. c. 38, for the interment of a deceased member of his family during the qualifying year is sufficient to disqualify the recipient, though otherwise en- titled to the franchise, from being registered as a parliamentary voter. Kerr v. C/iamicrs, 20 L. R., Ir. 207— C. A. Eeceipt of Alms.]— By the provisions of a charity, regulated by a scheme of the Charity Commissioners, a certain number of the poor A A 2 711 ELECTION IjAW—ParUamenta/ry. 712 inhabitants of a borough, who had not been for two years in receipt of parish relief, were re- ceived into an almshouse, where certain weekly payments and other benefits were bestowed upon them. They were liable to be removed for misconduct and other causes : — Held, that they had received alms within s. 36 of 2 & 3 Will. 4, c. 45, and were therefore disqualified from voting. Baiter v. Monmouth Town Council, 53 L. T. 668 ; 34 W. R. 64 ; 49 J. P. 776— D. The claimants during the qualifying period occupied almshouses in a borough and received out of a charitable fund for the sustenance of the inmates allowances of 6«. a week. The charity was regulated by an Act of Parliament, which provided that the inmates of the alms- houses were to be persons " who from age, ill- health, accident, or infirmity should be unable to maintain themselves" : — Held, that the facts showed a receipt of " alms which by the law of Parliament disqualify from voting" under the Eeform Act, 1832 (2 & 3 Will. 4, c. 45), s. 36, and that the claimants were not entitled to be registered as voters. JUdwards v. Lloyd, 20 Q. B. D. 302; 57 L. J., Q. B. 121 ; 58 L. T. 409 ; 52 J. P. 519 ; 1 Fox, 54— D. The Licensed Victuallers' Asylum is an insti- tution incorporated under royal charter. The design of the institution is to receive and main- tain decayed aged licensed victuallers and their wives and widows. Only those who have con- tributed to the funds of the institution as sub- scribers or donors are eligible to be elected as inmates of the asylum. The funds of the insti- tution are largely augmented by private benevo- lence. The inmates are subject to various rules of discipline, which may be altered from time to time by the board of management. No person having an income exceeding a certain amount is qualified to be elected or to remain an inmate of the asylum. The funds of the institution are applied, amongst other things, in augmentation of the incomes of the inmates up to a limit fixed from time to time by the board : — Held, that the rules of the institution do not necessarily show that the inmates are in receipt of alms such as to disqualify them from the franchise under the provisions of 2 & 8 Will. 4, u. 45, s. 36. Daniels V. Allard, 1 Fox, 70— D. 0. County Voters. Equitable Freehold — Lands vested in Trus- tees — Voluntary Association.] — Where an association of persons has purchased land for the purposes of an undertaking, and vested it by deed in trustees and managers upon such terms and conditions that, while the trusts of such deed subsist, the individual members of the association are respectively entitled only to a share in the net profits of the undertaking carried on upon the land, such members have not an equitable freehold in the land so as to acquire the county franchise, although the association is not incorporated or registered as a joint stock company, but is a mere voluntary association without statutory powers or restric- tions. Bander v. Brown (7 M. & G. 198) dis- cussed and distinguished. Watson v. Blach, 16 Q. B. D. 270 ; 55 L. J., Q. B. 31 ; 54 L. T. 17 ; 34 W. E. 274 ; 1 Colt. 418-1). Eentoharge below Value of £5 — Occupation. ] ■ — Bys. 18 of the Eeform Act, 1832, no person shall be entitled to a county vote in respect of any freehold lands or tenements of which h& may be seised for a life or lives, except he shall be " in the actual and bona fide occupation of such lands or tenements," or except the same shall be of the clear yearly value of not less than Wl. (reduced to 51. by a subsequent act) : — Held, that a rentcharge for life below the yearly value of hi., being incapable of occupation, was not within the exception in s. 18, and therefore did not confer a county vote. Druitt v. Cltrigt- okurch Overseers, 12 Q. B. D. 365 ; 53 L. J., Q. B. 177 ; 32 W. E. 371 ; 1 Colt. 328— D. Eentoharge — Actual Possession.] — ^A. being possessed of a rentcharge issuing out of freehold lands, granted it unto B., C. and D., and their heirs, to hold the same unto B., C. and D., and their heirs, to the use of A., B., C. and D., their heirs and assigns for ever, in equal one-fourth shares as tenants in common : — Held, that all the grantees took under the Statute of Uses, and that by force of the statute,.and on the authority of melis V. Blain(18 C. B., N. S. 90), they were from the date of the deed in actual possession of their shares of the rentcharge within s. 26 of 2 & 3 Will. 4, c. 45. Loweockv. Bronghton Over- seers, 12 Q. B. D. 869 ; 53 L. J., Q. B. 144 ; 51 L. T. 399 ; 32 W. E. 247 ; 1 Colt. 335— D. d. Kotice of Objections. Service through Post — No Postal Delivery.} — Notice of objection to the retention of his name on the supplemental list of inhabitant occupiers in their polling district, was addressed to each of a number of persons to the townland in which he resided, and was posted on the 19th August, at D., from which town the notice would in ordinary course have reached the local post office (situate within a short distance of the townland in each case) at mid-day on the 20th, and would have remained there till called for. There was no postal delivery at any of the townlands, and the notice could not have reached the person objected to unless he went or sent to his local post office, or unless by some accidental delivery or conveyance. At the revision a stamped duplicate copy of the notice in each case was produced to prove service, but no other evidence of service was given or tendered, or any proof that any person objected to was aware of the posting of the notice, or had sent to his post office on the 19th or 20th, or received the notice on or before the 20th : — Held, that the notices had been duly served. Adams v. Buchanan, 18 L. E., Ir. 292 — C. A. " Ordinary course of Post."] — Notices of objection to borough voters under 6 Vict. 0. 18, 3. 17, were addressed to barracks in' which the voters resided, and were posted in time to have been delivered on August 20 by postmen in the ordinary course of post at places within the borough elsewhere than at the barracks. Letters addressed to the barracks were never delivered at the barracks by postmen, but were taken from the post-office by orderlies. On the evening of August 20 the letters addressed to- the barracks were taken from the post-office by orderlies. Some of such letters were distributed at the barracks on August 20, others on August 21, while with respect to others there was no. evidence as to the time of distribution : — Held, 713 ELECTION 1.AW— Parliamentary. that the facts did not show that there was any " ordinary course of post " to the barracks within the meaning of s. 100, and that therefore there was no evidence that the notices had been served on August 20. ChUds v. Cox, 20 Q. B. D. 290 : 58 L. T. 338 ; 36 W. E. 505 ; 1 Fox, 84— D. Form of — Sesidenoe of Freeman — Power of Amendment] — By the Reform Act, 1832 (2 & 3 Will, i, c. 45), s. 32, no freeman of a city or borough is entitled to be registered as a parliamentary voter in any year unless " he shall have resided for six calendar months next previous to the last day of July (now by the Parliamentary and Municipal Kegistration Act (41 & 42 Vict. c. 26), s. 7, 15th of July), in such year within such city or borough or within seven statute miles from the place where the poll for such city or borough shall heretofore have been taken." A notice of objection was served on a freeman of Norwich dated August 12, and containing as the ground of objection the statement " That you do not reside at 12, Clifton Street, Norwich." The revising barrister held that the notice was suflScient, but amended it by substituting m. it the words " That you have not resided at 12, Clifton Street, Norwich, for six calendar months next preceding the 15th day of Jidy last, and that you have not through- out that period resided within the city of Norwich or seven miles thereof " : — Held, that the notice was bad, that the defect in it was not a "mistake" within the meaning of the Parliamentary and Municipal Eegistration Act, 1878 (41 & 42 Vict. c. 26), s. 28, sub-s. 2, and that the revising barrister had no power to amend. Bridges v. Miller, 20 Q. B. D. 287 ; 57 L. J., Q. B. 125 ; 58 L. T. 405 ; 36 W. R. 509 : 52 J. P. 618 ; 1 Fox, 47— D. Description of Objector.] — A notice of objection was signed : " E. B. on the list of parliamentary voters for the parliamentary borough of Battersea and Clapham." The borough of Battersea and Clapham consists of two divisions, those of Battersea and Clapham, and contains two parishes, those of St. Mary, Battersea, and Clapham. The Battersea division is wholly in the parish of St. Mary, Battersea, the Clapham division is partly in that parish and partly in that of Clapham. The name of the objector was in the list of occupiers for the parish of Clapham in the Clapham division : — Held, that the notice was insufficient, as it did not state the parish on the list of voters for which the objector's name was to be found. Wood V. Chandler, 20 Q. B. D. 297 ; 57 L. J., Q. B. 126 ; 36 W. E. 522 ; 52 J. P. 520 ; 1 Fox, 61— D. A notice of objection to a county vote was signed : " G. C, of Churchyard, on the list of parliamentary voters for the parish of Peters- field " : — Held, that the place of abode of the objector was insufficiently described under the Kegistration Act, 1885 (48 Vict. c. 15), s. 18, Sched. 2, Form I., No. 2. HumjiTirey v. Earle, 20 Q. B. D. 294 ; 57 L. J., Q. B. 124 ; 68 L. T. 403 ; 36 W. E. 510 ; 52 J. P. 51 8 ; 1 Fox, 39— D. Where the witness to a claim for the lodger franchise described himself therein as " agent," he being, in fact, a registration agent, and the revising barrister amended accordingly, although holding the original description sufficient : — Held, that the description of " agent " was suffi- 714 cient. Camphell v. Chambers, 22 L. E., Ir. 460— C. A. — - Omission of Date.] — Where a notice of objection to a person on the list of voters for any county is delivered to overseers and is defective under the Parliamentary Regis- tration Act, 1843, s. 7, the defect is not cured by the publication by the overseers, under s. 18, of the name of the person objected to. The omis- sion of a part of the date from such a notice is a defect which invalidates it, and cannot be amended. Freeman v. Newman, 12 Q. B. D. 373 ; 53 L. J., Q. B. 108; 51 L. T. 396: 32 W. K, 246 ; 1 Colt. 342— D. Specifying List.] — A notice of objec- tion given to overseers was to the names " in the Blockhouse List," "Division 1." There are three lists of Parliamentary voters for the Blockhouse : — firstly, householders and occu- piers ; secondly, freemen ; and, thirdly, lodgers ; but the only one of these which is divided is the first : — Held, that the notice did, at all events, sufficiently specify the list, to which the objec- tion referred, to authorize an amendment by the revising barrister under s. 28, sub-s. 2 of 41 & 42 Vict. c. 26. Bollen v. SoutMll, 15 Q. B. D. 461 ; 54 L. J., Q. B. 589 ; 34 W. E. 45 ; 49 J. P. 119 ; 1 Colt. 368— D. 8. Be vising' Barrister. Late Publication of Claims by Overseer.] — An overseer received claims in due times from occupiers and from lodgers not already on the register, but published a list of them some days after the time specified in the second Schedule, part 2 of the Eegistration Act, 1885 : — Held, that this did not invalidate the lists, and that the revising barrister was right in accepting and revising them. Wells v. Stan- fortli, 16 Q. B. D. 244 ; 55 L. J., Q. B. 12 ; 54 L. T. 183 ; 50 J. P. 631 ; 1 Colt, 451— D. Declaration as to Misdescription — Beception of, as Evidence.] — A declaration by a person entered on a list of voters as to a misdescription in such list cannot be received as evidence by a revising barrister, unless it has been sent within the statutory times to the town clerk or clerk of the peace. Dahing v. Vraser, 16 Q. B. D. 252 ; 55 L. J., Q. B. 11 ; 34 W. E. 366 ; 1 Colt. 455 — D. Powers of Amendment — Altering Nature of Qualification.] — In a list of voters, the nature of the appellant's qualification was described in the third column as "dwelling-house," and in the fourth column the name and situation of the qualifying property were described as "5, Victoria Cottages." The respondent ob- jected to the appellant's name being retained on the list, whereupon the appellant asked the revising barrister to amend the third column of the list by altering "dwelling- house " to " dwelling-houses in succession, and the fourth column by altering " 5, Victoria Cot- tages " to " High Street, Wapping, and 5, Victoria Cottages." The appellant had not sent in a declaration under s. 24 of the Parliamentary and Municipal Eegistration Act, 1 878. The barrister refused to amend :— Held, that the barrister 715 ELECTION J^KSN— Parliamentary. 716 was right, as the amendment would alter the nature of the qualification ; and the effect of s. 28, sub-s. 13 of the act of 1878, on sub-s. 1 of that section, is to limit the power of maliing such an amendment to cases in which a declara- tion has been duly sent in under s. 24 of that act. Porrett v. Lord (5 C. P. D. 65) disap- proved. Fusltett V. Kaufman, Ifi Q. B. D, 279 ; 55 L. J., Q. B. 1 ; 54 L. T. 64 ; 34 W. E. 90 ; 50 J. P. 484 ; 1 Colt. 466— C. A. Tenement and Garden.] — In the over- seers' list of occupiers entitled to vote for a division of a county, the " nature of the quali- fication " of a voter was described as " tenement and garden," and the " description of the quali- fying property " was stated to be " part bailiff's tenement." An objection was taken that the nature of the qualification was wrongly described. It was proved before the revising barrister that the voter was an inhabitant occupier of a part of a dwelling-house, and the barrister amended the list by striking out the word " dwelling- house" before -'tenement" :— Held, that, looking at the whole entry, the words " tenement and garden " might fairly be read as intended to be used in the vulgar but inaccurate sense of a small house, and to describe the qualification arising from the occupation of a dwelling-house, and consequently that the banister had power to amend the entry as he had done for the purpose of more accurately defining the qualification : — But held, that the proper alteration would have been to strike out the words " tenement and garden," and substitute the word " dwelling- house." Bashwoiid V. Ayles, 16 Q. B. D. 295 ; 55 L. J., Q. B. 8 ; 53 L. T. 58 ; 34 W. E. 53 ; .50 J. P. 182 ; 49 J. P. 776 ; 1 Colt, 486— C. A. In the overseers' list of occupiers entitled to vote for a division of a county, the " nature of the qualification " of a voter was described as " tenement and garden " and the " description of the qualifying property " was stated to be " School Tard." The " nature of the qualifica- tion " of thirty-three other voters was described in the same way. As to two of the thirty-thi-ee the " description of the qualifying property " was stated to be " School Yard," as to five " Cat Lane," as to three " High Street," as to five " Bridge." In each case the voter occupied a dwelling-house and garden of a less annual value than lOZ. : — Held, that, looking at all the cases together, the revising barrister might fairly con- sider that the words " tenement and garden " were intended to describe a dwelling-house, and that he had power to amend the description by striking out the words " and garden," and insert- ing the word " dwelliug-bouse " before " tene- ment," though it would have been better to strike out "tenement" also. Minifie v. Banger, 16 Q. B. D. 302 ; 55 L. J., Q. B. 10 ; 53 L. T. 590 ; 50 J. P. 131 ; 1 Colt. 493— C. A. ITotice of Objection.] — See Bridges v. Miller, ante, col. 713, and Freeman v. Ifewman and Bollen v. Southall, col. 714. Houses in Succession — Omission of One.] — The nature of the qualification of a voter was described on the parliamentary list as " dwelling- houses in succession," and the name and situa- tion of the qualifying property were described in the fourth column of the list " as 44, Oxford Street and 34, Prospect Place, Cowick Street." He had, in fact, occupied three houses in suc- cession during the qualifying period, but the overseer by mistake omitted to specify the third house, viz. 31, Prospect Place, and the occupation of the two only as they appeared on the list was insufficient to give the vote. These facts were proved before the revising barrister, and he was asked to amend the fourth column, and did so by striking out the figures " 44 " and " 34 " : — Held by Stephen and Cave, JJ. (Lord Coleridge, O.J.^ dissenting), that under 41 & 42 Vict. c. 26, s. 28, the revising barrister had refused to correct the mistake, although it should not have been cor- rected by striking out the numbers, and that the list should be amended by inserting " and 31 " after the words " Oxford Street " in the foui'th column of the list. Ford v. Hoar, 14 Q. B. D. 507 ; 54 L. J., Q. B. 286 ; 53 L. T. 44 ^ 33 W. E. 566 ; 49 J. P. 103 ; 1 Colt. 351— D. Where a person's right to be admitted to the Parliamentary franchise depends upon his occu- pation of different premises in immediate suc- cession, his claim must set forth and describe the several qualifying premises, and if it omit to do so, the revising barrister has power, under s. 4 of the Parliamentary Registration (Ireland). Act, 1885 (48 Vict. c. 17), to amend or correct it. Bempsey v. Keegan, 18 L. K., Ir. 280— C. A. The statements of facts on a claim to be ad- mitted to the Parliamentary franchise must be suiEcient to constitute a legal franchise of some defined character, and then, if the proved facts, turn out to be insufficient to establish a legal franchise of that character, but one sufficient to establish a legal franchise of another character^ the claimant may be registered. If the legal nature of the qualification derived from pre- mises mentioned in the claim is not sufficiently stated, the claim can be amended ; but no qualifying property which is not mentioned can be added. Melavgh v. Chamiers, 20 L. E., Ir. 286-0. A. M. claimed to be registered as an inhabitant " occupier " in respect of the premises,!, Cottage- vow, in the borough of Londonderry. The claim described the qualifying premises as " dwelling-house, 1, Cottage-row, in immediate succession from dwelling-house, Corbett-street, Londonderry." It was proved that M. had gone to reside at No. 1 in September, 1885, from No. 8, Cottage-row, which latter premises he had occupied for about three weeks imme- diately after the house in Corbett-street, where he had resided since before the previous 20tb July, and that the premises so immediately occupied had been omitted from the claim, owing to the claimant's considering it un- necessary to mention them : — Held, that the claim was defective in not setting out all the qualifying premises, and that the revising bar- rister had no power to amend it in this respect. " Successive Occupation " inserted by Mistake. — The qualification of a voter was stated in the third column of the list to be " offices, successive occupation," and in the fourth column " High Street and Charles Street," whereas it was proved that during the whole of the quali- fying period he had occupied one office only, namely, in High Street, and would have had by reason of such occupation a good and sufficient qualification. The misdescription was an error of the overseers ; — Held, that the revising 717 ELECTION LAW — Parliamentary. barrister had power under 41 & 42 Vict. c. 26, s. 28, to correct the mistake, and should have amended the list by striking out the words •' successive occupation " and " Charles Street." Lynch or JBlosse v. Wheatley, 14 Q. B. D. 50-1: ; 54 L. J., Q. B. 289 ; 53 L. T. 49 ; 1 Colt. 364— D. lodger Claim — Amount of Kent. ] — It is essential that every lodger claimant should state whether he pays rent for his lodgings or not, what is the specific amount of any rent he pays, and to whom he pays it ; and in the event of his occupying lodgings without paying rent, he must specifically show that he is exonerated by agreement from doing so without their losing the essential character of lodgings. A claim by a lodger under 31 & 32 Vict. c. 49, s. 4 (as ex- tended by 48 Vict. c. 3, s. 7, sub-s. 3), in the form No. 31 in schedule 1 to the Parliamentary Ee- gistration (Ireland) Act, 1885 (48 Vict. c. 17), stated the " amount of rent paid " at " lOZ. and upwards, including the salary," and another like claim by another lodger stated such rent as " lOZ. and upwards " only. The revising barrister was called upon by the claimants to amend the claims (as having been so filled in by " mistake ") by in- serting specific amounts for the rents payable, but he was of opinion that he had no power to do so, and rejected the claim : — Held, that the revising barrister had power, if necessary, to amend the claims by inserting a specific sum for the rent payable, if he had sufficient materials before him for the purpose. Clarhe v. Torish 18 L. K. 207— C. A. Power to Transfer from one List to another.] — Sect. 15 of the Parliamentary and Municipal Begistration Act, 1878, enacts that where the whole or part of the area of a municipal borough is co-extensive with or included in the area of a parliamentary borough, the lists of parlia- mentary voters shall, so far as practicable, be made out and revised together ; and specifies the mode in which overseers of parishes shall make out the lists. By sub-s. 2, where the parish is situate whoUy or partly both in the parlia- mentary borough and the municipal borough, the lists shall be made out in three divisions : Division 1 shall comprise the names of the persons entitled both to be registered as parlia- mentary voters and to be enroUed as burgesses ; division 2 shall comprise the names of the persons entitled to be registered as parliamentary voters, but not to be enrolled as burgesses ; division 3 shall comprise the names of the persons entitled to be enrolled as burgesses, but not to be regis- tered as parliamentary voters. By s. 28, sub-s. 15, where a list is made out in divisions the revising barrister shall place the name of any person in the division in which it should appear according to the result of the revision, regard being had to the title of the person to be on the list both as a parliamentary voter and a, burgess, or only in one of those capacities, and shall expunge the name from the other division (if any), in which it appears. An objection in respect only of a voter's qualification for the parliamentary fran- chise having been taken to the retention of his name in division 1, the revising barrister struck the name off division 1 ; and was thereupon asked to place it in division 3, but refused so to do unless proof was given of a qualification entitling the voter to be on the burgess roll : — Held, that the decision of the revising barrister 718 was right, and that he was not bound, under s. 28, sub-s. IB, to place the name in division 3. Greemoay v. Bachelor, 12 Q. B. D. 376; 53 L. J., Q. B., 179 ; 50 L. T. 270 ; 32 W. E. 320 ; 1 Colt. 322— D. Appearance hefore, by Agent.]— At the hearing of an objection to a voter's name being retained on a list of parliamentary voters, B. stated that he appeared on behalf of the voter and refused to answer a question put to him by the objector, whether or not he had been requested by the voter to appear on his behalf ; and the revising barrister declined to order him to answer the question, and allowed him to give evidence in support of the voter's qualification : — Held, that sub-s. 11. of 41 & 42 Vict. c. 26, s. 28, does not require that a person appearing on behalf of a pereon, against whom objection is made, should have been personally authorised to do so. Qusere, whether under the sub-section any authority is necessary. Ford v. Smerdon, 49 J. P. 760 — D. 2. ELECTION OF MBMBEES. a. The Poll. Ballot Paper— Absence of Official Hark.] — A ballot paper which conforms in other respects to the requirements of the Ballot Act, 1872 (35 & 36 Vict. c. 33), is not void because it has not on the face of it the official mark directed by s. 2 of that act to be marked on both sides of the ballot paper. Pickering v. James (8 L. E., C. P. 489) considered. Aclters v. Howard, 16 Q. B. D. 739 ; 55 L. J., Q. B. 273 ; 54 L. T. 651 ; 34 W. E. 609 ; 50 J. P. 519— D. Voting Twice — Effect of.] — It was proved that a vote had been given by some unknown person in the name of a voter, W., for the re- spondent. W. afterwards voted for the peti- tioner : — Held, that a vote must be added to the petitioner's number and a vote deducted from the respondent. St. Andrews Election, 4 CM. & H. 32. A voter, whose name appeared twice in the register, voted twice for the petitioner under a mistaken notion that he was entitled to do so : — Held, that the first vote was good and the second bad. Tl>, S. B. having voted in the Stepney Division and then in Whitechapel : — Held, that the first vote was good, and that the second did not, unless given with a corrupt intention, involve the offence of personation. Where a voter's name is wrongly placed upon the register for two divisions of the same borough he is entitled to elect in which he will vote. Isaacson v. Buramt. 54 L. T. 684 ; 4 O'M. & H. 34— Denman and Field, JJ. Reasonable time to Vote.] — See Ayleslury Division of Buchs Election, 4 O'M. & H. 59. To. Returning Ofiloer. Taxation of Charges.]— At a parliamentary election the high sheriff was the returning officer, the duties being performed on his behalf by a firm of solicitors, one of whom was under-sheriff. The returning officer's charges included a charge 719 ELECTION LAW—Pa/rliamentary. 720 for professional assistance rendered to him by the under-sheriff's firm, which was disallowed on taxation, on the ground that no detailed account was sent in to the returning ofiicer within fourteen days of the return, as required by s. 5 of the Eeturning OfBoers Act, 1875 : — Held, that the charge was wrongly disallowed on the above ground, the section not being applicable as between the returning oflBcer and the candidates to charges made for work done for the returning officer by his own agents. Ussex Mection QSoiith-Uastem Dn'inion), In re, 19 Q. B. D. 252 ; 56 L. J., Q. B. 356 ; 57 L. T. 104 ; 36 W. E. 44— D. The right of a returning officer under s. 2 of the same Act to be paid his reasonable charges and expenses is not limited to such charges only as have been vouched under ss. 4 and 5 of the act, nor is a charge made by him to be disallowed merely because in the account sent in by him to the candidates it appears under a wrong heading. A returning officer is not limited to charging for such services and expenses as come verbatim et literatim within the description in the schedule to the act, if they are services and expenses of one of the kinds mentioned in the schedule. IT). A charge for storing ballot-boxes from one election to another in order to avoid the expense of procuring fresh ones was therefore allowed, although no such charge is expressly provided for in the schedule to the act. li. A returning officer at a parliamentary election is not entitled to remuneration for personal services rendered by him in the conduct of the election, under the heading of professional or other assistance, which he has not as a matter of fact employed. Shoreditch {Homton Bitisimi) Mlection, In re, Walker, Hx parte, 56 L. T. 529 — D Time for Application — " Apply to the Court."]— By s. 4 of 38 & 39 Vict. c. 84, it is enacted that an application to tax the returning officer's charges at a parliamentary election may be made, within fourteen days from the delivery of the account, to the county court having juris- diction at the place of nomination for the elec- tion ; — Held, that an application made within the time specified to the registrar of the county court when the judge was not sitting was properly made. Ileg. v. JBloomshury Connty Court Judge, 56 L. T. 321 ; 51 J. P. 212— C. A. Affirming 17 Q. B. D. 778 ; 55 L. J., Q. B. 443 — D. Power to Review.] — Where the accounts of a returning officer have been taxed by the registrar of a" county court under the Parlia- mentary Elections (Returning Officers) Act, 1875 (38 & 39 Vict. c. 84), s. 4, the county court judge has no jurisdiction to review the registrar's taxation. Beg.v.Lamheth County Court Judge, 17 Q. B. D. 96— D. See 49 & 50 Vict. c. 57. c. Election Expenses. What are.] — A trivial expense, not authorised by the schedule to the Corrupt and Illegal Prac- tices Prevention Act, 1883, and returned amongst " election expenses " is not necessarily illegal. Isaacson v. Durant, 54 L. T. 684 ; 4 O'M. & H. 34 — Denman and Field, JJ. meeting to induce Person to be Candidate.] — Where a meeting is held or other expenses are incurred with the object of inducing a person to become a candidate at an election, the question whether the costs of the meeting and other ex- penses are " election expenses " is one which must be answered in relation to the particular circumstances of the case. Birlibech v. Sullard, 54 L. T. 625 ; 4 O'M. & H. 84. Persons Paid to Keep Order.] — Money paid by an agent of a candidate for the employment of persons to keep order at meetings connected with the election is an expense connected vrith the management and conduct of an election, within the meaning of s. 28 of the Corrupt and Illegal Practices Prevention Act, 1883. Packard V. CoUings, 54 L. T. 619 ; 4 O'M. & H. 70. Registration Expenses — Starting a News- paper.] — Expenses incurred by a candidate as a subscription to registration expenses need not be returned as election expenses. A candidate at the geneial election of 1885 established a news- paper in Aug., 1885, which ceased to appear in Jan., 1886 : — Held, that losses incurred in con- nexion therewith need not be returned as elec- tion expenses. Grossman v. Gent-Davis, 54 L. T. 628 ; 4 O'M. & H. 93. Disputed Claims, Payment of— Notice of Ap- plication for Leave.] — An application on behalf of a candidate at a parUamentary election for an order of the High Court for leave to pay a dis- puted claim within s. 29, sub-s. 7, of the Corrupt and Illegal Practices Prevention Act, 1883, will not be granted without due notice to the candi- date on the other side, the returning officer, and the constituency at large, by public advertise- ment or otherwise. South ShropsJdre Mection, In re, 54 L. T. 129 ; 34 W. E. 352— D. d. Election Petition. Trial — Change of Venue — " Special Circum- stances."] — Where the allegations of fact in a parliamentary election petition are not in dis- pute but are specifically admitted by the re- spondent so as to render it unnecessary at the trial to call witnesses from the district in which the election took place, the court may order the petition to be tried in London on the ground that " special circumstances " exist within the meaning of s. 11, sub-s. 11, of the Parliamentary Elections Act, 1868 (31 & 32 Vict.c. 125), which render it desirable that the petition should be tried elsewhere than in the county or division where the election took place. Arch v. Bentiiick, 18 Q. B. D. 548 ; 56 L. J., Q. B. 458 ; 56 L. T. 360 ; 35 W. E. 476— D. Examination of Voting Paper.] — It is com- petent for the judges at the hearing of an election petition to examine a voting paper before the vote given thereupon is proved to have been bad. The provisions of the Ballot Act against inspect- ing voting papers do not apply to the court. Isaacson v. Dnrant, 54 L. T. 684 ; 4 O'M. & H. 34 — Denman and Field, JJ. Evidence of Voting.] — The statement on oath of a voter that he had voted in two divisions of the same borough is evidence of the vote given 721 ELECTION JjAW— Parliamentary. in the latter division, without the further pro- duction of the voting paper. Jb. Calling "Witnesses— Conduct of Case.] — To call the respondent and his agents as the sole wit- nesses in support of a petition, and to treat them as hostile witnesses, is not the proper way to conduct a petition. Crossvmn v. Gent-Davis, supra. Agency.] — Where the petitioner makes out a primS, facie case of agency, it must be accepted unless rebutted by the respondent. Birlibecli v. Bullard, supra. See &isoAylesT)ury Division of Bucks, i O'M. & H. 59. Bribery.] — In a case where bribery is proved the court has no power to report, under s. 22 of the Corrupt and Illegal Practices Prevention Act, 1883, that the offence is of a, trivial nature, and ought not to void the election. Birlibecli v. Bullard, supra. Beserving Points of law.] — See Ackers v. Howard, i O'M. & H. 65. Public Prosecutor — Cross-examination on be- ialf of.] — The public prosecutor is not entitled to administer a general cross-examination, with- out definite object, to every witness called in the course of the hearing of a petition. Cross- examination with the view of showing that a mistake has been made in giving to one voter the paper intended for another is not admissible. Isaacson v. Durant, supra. Costs.] — Where a petition is utterly un- founded the costs of the public prosecutor will be ordered to be paid by the petitioner. Cross- man V. Gent-Davis, supra. An overloaded petition will be visited with costs, even if it is successful. Birhbeclt v. Bullard, supra. See also Acliers v. Howard, i O'M. & H. 65. "Withdrawal of Petition— Higher Scale.] — The 43rd section of the Corrupt and Illegal Practices Prevention Act, 1S83, applies only to the costs of the director of public prosecutions at the trial of the petition, and when the petition is withdrawn the court has no power, under the 41st section of the Parliamentary Elections Act, 1861, to order the preliminary costs of the direc- tor of public prosecutions, and the costs of the inquiries made by him to be paid by the parties. Under the 44th section of the Corrupt and Illegal Practices Prevention Act, 1883, the costs of an election petition will usually be allowed on the higher scale, in accordance with the old practice under the 4 1st section of the Parliamentary Elec- tions Act, 1868. Pasooe v. Puleston, 54 L. T. 733 ; 50 J. P. 134. e. Corrupt Practices. Bribery.] — A single case of bribery by an agent renders an election void. A circular letter addressed by a candidate to his con- stituents must not be interpreted with the same strictness as a commercial document. Birkbeelc V. Bullard, supra. See also Aylesbury Division of BucTis, 4 O'M. & H. 59. To offer a voter his travelling expenses with the intention of inducing him to come and vote 722 for a given candidate is bribery, and the Cor- rupt and Illegal Practices Prevention Act, 1883, has not altered the law in this particular. Pachard v. CoUings, supra. Illegal Employment— What is.]— D. and his agents gave gratuitous refreshments to certain persons styled " workers " at a parliamentary election at which D. was a candidate : — Held, that this was an illegal employment within s. 17 of the Corrupt and Illegal Practices Prevention Act, 1883, and rendered the election of D. void. Schneider v. Duncan, 54 L. T. 618 : 4 O'M. & H. 76. The employment of persons to keep order at meetings connected with an election is an illegal employment within the meaning of s. 17 of the Corrupt and Illegal Practices Prevention Act, 1883. Packard v. CoUings, supra. Intimidation by Bioting.]- Howard, 4 O'M. & H. 65. -See Acliers v. Treating — What is. ] — Treating is not the en- tertainment of equals by equals, but of an in- ferior by a superior with the object of securing the goodwill of the inferior (per Cave, J.). Birhbeclt, v. Bullard, 54 L. T. 625 ; 4 O'M. & H. 84. Effect of. ] — General bribery and treating will void an election if proved to have existed upon the side of a successful candidate. Semble, that if general bribery and treating are proved, it is the duty of the judges to report the preva- lence of extensive corruption. Packard v. Col- lings, 54 L. T. 619 ; 4 O'M. & H. 70, and see Aylesbury Division of Bucks, 4 O'M. & H. 59. f. Criminal Law relating to. Indictment for "Corrupt Practices" — De- scription of Offence.] — In an indictment for a " corrupt practice " within the meaning of s. 3 of the Corrupt and Illegal Practices Prevention Act, 1883, it is necessary to specify the particular offence with which the prisoner is charged. Beg. V. Stroulger, 17 Q. B. D. 327 ; 55 L. J., M. C. 137 ; 55 L. T. 122 ; 34 W. E. 719 ; 51 J. P. 278 ; 16 Cox, C. C. 85-0. C. E. An indictment charged that at a parliamentary election the prisoner was " guilty of corrupt prac- tices against the form of the statutes in that case made and provided." The jury found the pri- soner guilty of corrupt practices by offering money for votes. After verdict it was objected that the indictment was bad, because it did not sufficiently describe the nature of the offence with which the prisoner was charged : — Held, per Lord Coleridge, O.J., and Mathew, J., that the indictment was bad for insufficient descrip- tion of the offence charged, but that the defect was cured by verdict ; per Field, J., that the indictment was good, but that, if not, the defect was cured by verdict ; per Denman, J., and Bay, J., that the indictment was bad, and that the defect was not cured by verdict. lb. An indictment under the Corrupt and Illegal Practices Prevention Act, 1883, which merely charges the defendant with being guilty of a corrupt practice at an election, but does not specifically allege against him what that corrupt practice was, is bad for generality. Beg. v. Norton, 16 Cox, C. C. 59— Pollock, B. 723 ESTATE. 724- Fersonation — Application for Ballot Paper in atBumed Name.] — If at a parliamentary elec- tion a man applies to the presiding officer for a ballot paper in a name other than his name of origin, or in the name by which he is generally known, but in a name which appears on the register of voters, and which was inserted therein by the overseers in the belief that it was the name of the applicant, and for the purpose of putting him on the register, he is entitled to vote, and is not a person who " applies for a ballot paper in the name of some other person, whether that name be that of a person living or dead, or of a fictitious persbn," so as to be guilty of the offence of personation within the meaning of s. 21 of the Parliamentary and Municipal Elec- tions Act, 1872, or the Corrupt and Illegal Prac- tices Prevention Act, 1883. Meg.Y. Fox, 16 Cox, C. C. 166 — Hawkins, J. See also Isaacson v. Durrani, ante, col. 718. Appointment of Presiding Officer.] — In order to sustain a conviction for personation it is not necessary to state in the indictment, or to prove at the trial, that the presiding officer at the booth where the offence was committed was duly appointed. Semble, the appointment of a presiding officer need not be in writing. Reg. v. Garvey, 16 Cox, C. C. 252— Ir. C. C. K. EQUITY TO A SETTLE- MENT. See HUSBAND AND WIFE. ENTRY. See EVIDENCE. ESTATE. Descent ex parte Materna or ex parte Pa- terna.] — S. i of the Inheritance Act (3 & 4 Will. 4, c. 106), is not merely declaratory of the old law ; it introduces a new rule as to the tracing of the descent in the case of a limitation to the heirs general of a deceased person. By a mar- riage settlement executed in 1810, real estate of the wife was limited to the use of the husband for life, remainder to the use of the wife for life, and, after limitations in favour of the issue of the marriage, the ultimate limitation was " to the use of the right heirs of J. W., deceased (the mother of the wife), for ever." At the date of the settlement the wife was seised of part of the real estate as the heiress-at-law of her deceased mother, and of the other part as one of the co- heiresses of her deceased maternal great uncle. The wife died in 1846 ; the husband died in 1871. The limitations in favour of the issue all failed on the death in 1880 of the surviving son of the- marriage :— Held, that, if under the ultimate- limitation the wife took the estate as a pur- chaser, MandemWs case (Co. Litt. 26 b.) did not apply, and that the descent from her would be traced in the ordinary way, and not ex parte matenia. But held, that, under the ultimate limitation, the wife took the estate as part of the old estate which she had before the marriage, and that the descent was not broken by the settlement. Moore v. SimMn, 31 Ch. D. 95 ; 55 L. J., Ch. 305 ; 53 L. T. 815 ; 34 W. E. 254— Pearson, J. A testator who died in 1853, devised as his- own an estate which had devolved on his late wife in fee as heiress-at-law of her mother. The devise was to trustees in fee, on trust to pay the rents to the testator's only son and tO' his two daughters in equal shares, and to the- survivors or survivor of them, with remainder on trust for the children of the son and the daughters respectively in fee, with an ultimate remainder unto and to the use of the testator's own right heirs. The son and both the daughters- survived the testator, but they all died without issue. The son survived the daughters, and died' intestate. He was the heir-at-law of his father, and also of his mother. The testator had also- devised real estate of his own to the son, who- elected to confirm the will : — Held, that the- equitable estate, which the son took under th& will, and by virtue of his election, merged in the legal estate which descended to him from his mother, and that the descent was regulated by the legal estate, and that, consequently, on his- death intestate and without issue, the property descended to the heir of his maternal grand- mother, who was the last purchaser of the legal estate, and not to his own heir. Douglas, In re^ Wood V. Douglas, 28 Ch. D. 327 ; 54 L. J., Ch. 421 ; 52 L. T. 131 ; 33 W. R. 390— Pearson, J. Descent of — Construction of Settlement] — See- Settlement. Tenants for Life — Eemainderman.] — Sec- Tenant. Joint Tenancy — Severance of.] — See TENANT. ESTOPPEL. I. By Becoed. 1. General Principles, 724. 2. Against what Parties, 727 3. In lohat Cases, 728. II. By Deed, 732. III. By Matter in Pais, 735. I. BY RECORD. 1. General Principles. Meaning of Doctrine as to Ses Judicata.] — The doctrine of res judicata does not apply only where there is a record. It is one of the most 725 ESTOPPEL— J52/ Record. 726 fundamental doctrines of all courts that there must be an end to litigation, and that the parties have no right of their own accord after having tried a question between them and obtained a decision of the court, to start that litigation over again on precisely the same questions. Mat;, In re., Souse. Ex pai-to, 28 Ch. U. 518 ; 51 L. J., Ch. 338 ; 52 L. T. 79 ; 33 W. R. 917.— Per Lord Esher, M.E. Same Litigant setting up Opposite Construc- tions of Seed.] — Where a litigant has obtained the decision of the court on the construction of a deed in his favour, he cannot ask the court in a subsequent action to put an opposite construc- tion on the same deed. Gandy t. Gaudy, 30 Ch. D. 57 ; 51 L. J., Ch. 11.51 ; 53 L. T. 30G ; 33 W. E. 803 — C. A. See also Roe v. Mutual Loan Fund Association, 19 Q. B. D. 317 ; 56 L. J., Q. B. 511 ; 35 W. E. 723— C. A. Same matter in Issue — Porgery of Will — Bevocation of Probate.] — In an action in the Probate Division, T. and G. propounded an earlier, and P. a later will. The action was oompromised, and by consent verdict and judg- ment were taken for establishing the earlier will. Subsequently P. discovered that the earlier will was a forgery, and in an action in the Chancery Division, to which T. and G. were parties, obtained a verdict of a jury to that effect, and judgment that the compromise should be set aside. In another action in the Probate Division for revocation of the probate of the earlier will : — Held, that T. and 6. were estopped from denying the forgery. Pr'mtman v. Thomas, 9 P. D. 210 ; 53 L. J., P. 109 ; 51 L. T. 843 ; 32 W. E. 812— C. A. Decision not. necessary.] — A native of Chili made his will in London and died. A caveat having been entered on behalf of his daughter, the executors propounded the will in solemn form, alleging that the testator was domiciled in England. The daughter pleaded that the deceased was at the date of the will and until his death domiciled in Chili, and that the will was not duly executed according to the law of Chili. Upon this plea (inter alia) the executors took issue. The judge of the Probate Court made a decree by which he pronounced for the validity of the will, found that the deceased was at the date of the will and at his death a domiciled Englishman, and decreed probate to the execu- tors. The daughter afterwards filed a bill against the executors, alleging that the testator was a domiciled Chilian, that his will being executed in England according to English law was good by the law of Chili, but so far only as the testator could by the law of Chili dispose by will of one-fourth of his personal estate, and that the other three-fourths belonged to the daughter. The executors by answer set up the decree of the Probate Court as a bar. An order having been made for inquiry as to the testator's domioil, in an administration suit under circumstances (which it was contended) made it equivalent to an order in the suit by the daughter against the executors, the question whether the order was right was litigated between the daughter and the residuary legatee : — Held, that the decree of the Probate Court was not conclusive in rem as to the domicil, because the finding as to the domicil was not necessary to the decree : — Held, also. that for the same reason the decree of the Pro- bate Court was not conclusive inter partes as to the domicil, as between the daughter and the- residuary legatee, for the executors could not,, by litigating in the probate suit a question of domioil which it was not necessary to decide for the purposes of that suit, conclude the residuary legatee as to the testator's power of disposing of his property, and that as the residuary legatee was not bound, the daughter could not be bound, since estoppel must be mutual. Concha v. Concha, 11 App. Gas. 541 ; 56 L. J., Ch. 257 : 55- L. T. 522 ; 35 W. E. 177— H. L. (E.) Action for Rectification of Agreement already- construed by Court.] — C. built a ship for B., and a considerable sum remained due to them, for which they had a lien on the ship. M. had made advances to B. An agreement was made between the three parties for sale of the ship by C, and for the distribution of the proceeds. The agreement was very obscure, and left it doubtful in what order the claims of C> and of M. were to be paid. After the sale M. sued C. for an account of the proceeds, and judgment was given in the court of the County Palatine for carrying into execution the trusts- of the agreement, and for the requisite account. On taking the account before the Registrar, C. claimed to be allowed his debt, but the registrar held that M. had priority. The proceeds were amply siiflacient to pay M.'s claim, but not C.'s- also. The Vice- Chancellor afiBrmed the view of the registrar, and made an order for C. to pay M.'s claim. C. appealed, but the appeal was- dismissed, and the money was paid to M. After this C. brought an action to rectify the agree- ment by making it provide that C.'s claim should have priority over that of M. M. pleaded that the agreement having been executed, and the money paid under the order of the Palatine Court, C. was not entitled to any relief : — Held,, on appeal, that the action must be dismissed,, for that although the question of rectification) not having been before the Palatine Court,, there was no res judicata, C. could not come- to have the agreement rectified after it had been- worked out, and the fund distributed, under the order of the court in the Palatine action. Caird v. Moss, 33 Ch. D. 22 ; 55 L. J., Ch. 851 ; 55 L. T. 453 ; 35 "VV. E. 52 ; 5 Asp. M. C. 565 — C. A. Proof that Actions are the same — Pleadings. J — In order to raise the defence of res judicata., it is not necessary to set forth in detail in the- defence the pleadings in the other action the- judgment in which is said to operate as res- judicata, but, in order to judge whether the same questions were at issue in the first action as in the second, the court will look at the pleadings- in the first action, though they were not set forth in the defence in the second action. Houstoun V. SUgo (,Marquis'), 29 Ch. D. 448 ; 52 L. T. 9ft — Pearson, J. Judgment in first Action when Obtained.] — Whether a judgment obtained in one action before the trial of another can operate by way of estoppel as res judicata, unless the judgment was obtained before the issue of the writ in the second action, qusere. lb. Judgment against Agent set aside— Action. 727 ESTOPPEL— i?2/ Record. against Principal.]— The plaintiff had supplied goods on K.'s order, to a theatre, and had •obtained judgment against K. for the price. Whilst the judgment was still standing the plaintiff commenced an action against the lessee of the theatre for the price of the same goods. The lessee objected that the matter was res judicata. The judgment against K. was set aside before the hearing of an appeal to the Divisional Court : — Held, that as the judgment liad been set aside, the action was rightly brought against the lessee. Fartint/ton v. Hawthorne, S2 J. P. 807— D. 2. Against what Parties. Privity hetween Incumbent of Benefice and Tatron.] — An incumbent who comes into a benefice is a privy in law to the patron who .appointed him, so as to be entitled to the benefit, and subject to the burden, of the same estopped as the patron. R., the incumbent of a living, sent in his resignation of the benefice to the bishop, on the understanding that the resigna- tion was not to be formally accepted, nor the benefice declared vacant, until a date agreed upon between himself and the bishop. Before that date arrived E. withdrew his resignation, but the bishop refused to accept the withdrawal, and at the time agreed upon declared the bene- fice vacant, after which the patrons appointed .another incumbent, who was duly instituted and inducted into the benefice. R. brought an action against the bishop to have his resignation de- -clared null and void. To this action the patrons ■of the living were parties, and the sole question was whether the resignation was effectual, and it was decided against E. that the resignation was effectual and complete. E. refused to give up the parsonage-house and glebe lands, and in an action brought against him by the new in- -cumbent, for an injunction to restrain him from continuing in wrongful possession of the premises and for trespass, R. set up, substantially, the «ame defence as in the former action, namely, that his resignation was not effectual :— Held, that, as the question of the effectuality of the resignation was raised and disposed of in the former action to which the patrons were parties, .and as R. would have been estopped from raising that question again in any proceedings between himself and the patrons, he was also estopped from raising the same question as a defence against the incumbent, who, as being a privy in law to the patrons, was entitled to take advantage of the same estoppel. Magratk v. Beieliel, 57 L. T. 850— D. Partners — Judgment against One — Action against other Partners barred.] — An unsatisfied judgment against one joint contractor on a bill of exchange, given by him alone for the joint debt, is a bar to an action against the other joint contractor on the original contract. The plain- tiffs sold goods to a partnership consisting of the defendant and W. After the sale the partnership was dissolved. The plaintiffs, who were not aware of the dissolution, drew bills for the price of the goods, which were accepted by W. in the partnership name. The plaintiffs sued W. in the partnership name on the bills, and recovered judgment, which was not satisfied. The plain- tiffs afterwards sued the defendant for the price 728 of the goods :— Held, that the case was within the principle of Kendall v. ■Hamilton (4 App. Cas. 504), and the judgment against W. on the bills was an answer to the action. Dralie v. Mitchell (3 East, 251), distinguished. CambefoH V. Chapman, 19 Q. B. D. 229 ; 56 L. J., Q. B. 639 ; 57 L. T. 625 ; 35 W. R. 838 ; 51 J. P. 455 — D. Proof against Estate of One — Action against other Partner.] — Although by the law as settled by King v. Hoare (13 Mee. & W. 494) and affirmed by Kendall v. Harrison (4 App. Cas. 504), a judgment obtained against one or more of the members of a firm or co-contractors precludes recourse to any other person not joined in the action, an exception to that rjile has been long established in courts of equity — namely, that a surviving partner, or the estate of a deceased partner, is still liable to creditors of the partnership. Hodgson, In re, Beeliett v. Ramsdale, 31 Ch. D. 177 ; 55 L. J., Ch. 241 ; 54 L. T. 222 ; 34 W. E. 127— C. A. Executors of Executrix de son tort.]— J. being indebted to the plaintiff in the sum of 360Z., died on November 2, 1882, intestate. His widow. A, without obtaining letters of administration inter- meddled with his assets, and the plaintiff having sued her as executrix of her husband for the sum of 360Z., she consented to judgment, and the plaintiff thereupon signed judgment against her as executrix for his debt and costs. After her death he brought an action against her executors to recover 372Z. os., suggesting a devastavit by A. of her husband's assets : — Held, that the judgment against A. was conclusive as against her to ^how that she then had assets of J. to satisfy the amount of the debt, viz. 372Z. 5s., and that to the extent of the difference between that amount and the sum of 154Z., found by the jury to be remaining at her death, a devastavit must be presumed to have been committed by her, for which her assets in the hands of the defendants were liable. Ennis y. Rochford, 14 L. E., Ir. 285— Q. B. D. 3. In what Cases. Distinct Causes of Action — Same wrongful Act.] — Damage to goods, and injury to the person, although they have been occasioned by one and the same wrongful act, are infringe- ments of different rights, and give rise to dis- tinct causes of action ; and therefore the recovery in an action for compensation for the damage to the goods is no bar to an action subsequently commenced for the injury to the person. The plaintiff l)rought an action in a county court for damage to his cab occasioned by the negli- gence of the defendant's servant, and, having recovered the amount claimed, afterwards brought an action in the High Court of Justice against the defendant, claiming damages for personal injury sustained by the plaintiff through the same negligence : — Held, \>j Brett, M.B., and Bowen, L.J. (Lord Coleridge, C.J., dis- senting), that the action in the High Court was maintainable, and was not barred by the previous proceedings in the county court. Brniisdeii v. Humphrey, 14 Q. B. D. 141 ; 53 L. J., Q. B. 476 ; 51 L. T. 529 ; 32 W. E. 944 ; 49 J. P. 4— C. A. A ship. A., and her cargo, belonged to the same owners, and the plaintiffs advanced lOOOZ. as a 729 ESTOPPEL— By Record. 73a loan to such owners, and received as security, in conformity with the agreement made between them and the borrowers, the bill of lading, on which the master indorsed a receipt for 10002. as advanced freight, and also a policy of insurance on advanced freight. Ship A. was lost through a collision with the defendant's vessel, whose negli- gence was admitted. It was proved that the difference between the value of the cargo at the port of destination and at the port of loading would have considerably exceeded 1,0002. In an action by the holders of a bill of lading for 1,000Z. against the defendant's ship: — Held, that the plaintifis were entitled to recover the sum, and that the fact that a sum in respect of disbursements for ship A. on her voyage, and wages paid in advance had been awarded to the owners of the A. by the registrar and mer- chants was no bar to the plaintiff's right to recover in this action. TJie Thyatira, 8 P. D. 155 ; 52 L. J., P. 85 ; 49 L. T. 406 ; 32 W. K 276 ; 5 Asp. M. C. 147— Hannen, P. Separate Actions for Injuries to part of same Consignment of Goods.] — [n September, 1883, the plaintiffs (a firm of millers) delivered to the defendant railway company a quantity of flour to be carried on the railway, nine sacks being . consigned to D., and the remainder being con- signed to the plaintiffs themselves. Some of the flour, comprising one of the sacks received by the plaintiffs and the greater portion of that delivered to D., was damaged in the carriage. J), used up two and a half sacks of the injured flour, and then he returned five sacks to the plaintiffs and claimed damages for the two and a half sacks which he had used. The plaintiffs notified to the defendants the damage sustained, and proceeded to recover damages for the injury to six sacks of the flour, but did not claim in respect of the two and a half sacks used up by D., and they obtained decres against the defen- dants on the 31st October, 1883. D., on the 17th December, 1883, issued a civil bill against the plaintiffs for the damage to the two and a half sacks, and obtained a decree against them on the 17th AprU, 1884, which was affirmed on appeal, and the amount was paid by the plaintiffs to D. The defendant railway company were served by the present plaintiffs with notice of D.'s civil bill and the appeal from the decree, and invited to attend on the hearing. The plaintiffs after- wards sued the defendant railway company by civil bill to recover the amount which they had been obliged to pay to D. for damages and costs under the decree of 19th April, 1884: — Held, that the injury to the two and a half sacks being an integral part of the cause of action arising from the defendant's negligence in the carriage of flour and for which the plaintiffs sued in the first process, the second action was not main- tainable. Rnssell v. Waterford and Limericlt Railway, 16 L. E., Jr. 314— Ex. D. Former Cause between same Parties.] — To a petition by a wife against her husband for restitution of conjugal rights, the respondent, by his answer and cross-petition for a divorce, pleaded cruelty on the part of the petitioner. — Keply, that previously to the filing of the present petition the now petitioner filed a peti- tion for a divorce on the ground of cruelty, and the now respondent filed his answer preferring charges of cruelty against the petitioner ex- tending over the same period mentioned in his present answer, and prayed for a divorce ; that the charge of cruelty in his former answer was the same as the charge alleged in the present answer and petition ; that the former case was set down to be heard before the judge and .i jury, and the issues were, fii-st, whether the re- spondent was guilty of cruelty ; secondly, whether the petitioner was guilty of cruelty ; that the said issues were tried, and the respondent gave in evidence the several allegations of cruelty set forth in the present answer and cross-petition ; and that thereupon the claim of the now respon- dent to a divorce a mensa et thoro was refused ; and further, that after the evidence was so given, the judge asked the respondent's counsel whether they required to have any question left to the jury on the second issue, and the counsel replied that they did not, and abandoned the claim on the former cross-petition, and the jury were thereupon discharged from finding on the second issue ; and that the respondent was estopped and concluded by the proceedings had in the former suit, and by the said issue, and by acts and admissions of his counsel at the trial : — Held, on demurrer, that the reply was bad, the facts stated by it not amounting to an estoppel on the respondent. Carnegie v. Ga/r%egii\ 17 L. R., Ir. 430— Mat. Affirmed in C. A. Dismissal for want of Prosecution — Consent Order.] — An order by consent, in the absence of an agreement to compromise the cause of action, to dismiss an action for want of prosecu- tion, is no bar to the institution of a fresh action. In this respect the practice of the old court of Chancery remains unchanged. Magnns v. National Ban% of Scotland, 57 L. J., Ch. 902 ; 58 L. T. 617 ; 36 W. R. 602— Kay, J. The plaintiffs in an action, wherein the same parties were respectively plaintiffs and defen- dants, and the same relief was sought as in the present action, had paid the defendants' costs and consented to an order, made on summons taken out by the defendants, dismissing the action for want of prosecution. The plaintifis subsequently brought the present action, where- upon the defendants moved that the question of law might first be tried whether the plaintiffs were not estopped from bringing the present action by reason of the consent order made in the previous action : — Held, that the motion must be dismissed. lb. Prohibition in previous Action.] — The plain- tiff's solicitor, who carried on business within the jurisdiction of the Mayor's Court, wrote to the defendant demanding payment of 11. 6s. 6d. for goods sold and delivered. The defendant wrote to the plaintiff's solicitor (which he re- ceived within the jurisdiction) admitting that he owed to the plaintiff 51. 6s. hd. The plaintiff brought an action in the Mayor's Court for 11. 6s. 6d., and the defendant obtained a writ of prohibition staying proceeding therein, as the contract was entered into and the plaintiff and defendant resided out of the jurisdiction. The plaintiff then commenced a second action to recover 5Z. 6s. 6d. on an account stated, and the defendant obtained a second writ of prohibition : —Held, that the prohibition in the first action was not an estoppel against bringing the second action. Grundy v. Toionsend, 36 W. R. 531 — C.A. 731 ESTOPPEL— JS^/ Record. 732 Fresh'Action on Fresh Evidence,] — The next of kin of a testator instituted a suit for adminis- tration with a will annexed, bearing date 1868, ■of which the sole executor and universal legatee was the testator's wife, who predeceased him. The opposition parties claiming to be 'legatees ■sot up the contents of a later will, alleged to have been executed in 1877 or 1878, but which ■could not be found. The Court of Appeal, nroTersing the judgment of the Probate Division, ■decided that there was not sufficient evidence of the contents of the second will, and their deci- sion was affirmed in the House of Lords. A fresh suit for probate of the second will was then commenced by the executor of the testator and residuary legatee of the will of 1877-78, who had been the confidential solicitor of the deceased, and who had acted as solicitor for the legatees all through the litigation. The suit ■was founded upon fresh evidence of the con- tents and execution of the second will : — Held, that although the plaintiflE had been privy to the jjrior action, an application to stay the proceed- ings generally could not be granted, but that the proceedings ought to be stayed until the «osts" of the plaintiffs in the prior action had been paid. Peters v. Tilly, 11 P. D. 145 ; 55 L. J., P. 75 ; 35 W. E. 183— Butt, J. Where a petition for the re-transfer of stoclc "has been heard on the merits, and is dismissed on 'the ground that the petitioner has failed to make out his title, he cannot on the subsequent -discovery of fresh evidence to support it, present a fresh petition for the same object without the leave of the court previously obtained. May, In re, House, E:r parte, 28 Ch. D. 518 ; 54 L. J., 'Ch. 338 ; 52 L. T. 79 ; 33 W. R. 917— C. A. Second Action for same Cause — Prayer for •" further or other Belief."] — In March, 1881, the plaintiff handed to one Bird, a broker, shares in a mining company, with a transfer signed (a blank being left for the name of the transferee), for the purpose of sale. Bird died ; and it was then discovered that he had, without the know- ledge or authority of the plaintifi, lodged the ■shares with the defendant's firm as security for an advance. Having received notice from the ■company that they were about to register the shares in the name of the defendant, the plain- tiff commenced an action in the Chancery Divi- •sion of the High Court to restrain the defen- dant's firm and the company from parting with the shares, or registering the defendant as trans- feree — concluding with the usual prayer for " such further or other relief as the nature of the -case might require." On the 23rd of February, 1882, the defendants in that action consented to .a,n order for the delivery up of the shares to the plaintiff forthwith. The order directed that, " upon delivery of the deed or form of transfer, and the securities representing the same, and upon payment of costs to the plaintiff and the ■mining company, all proceedings in the said Chancery action should be stayed." The shares were not delivered up to the plaintiff until the 28th of April, 1882, when they were sold at a considerable loss. In an action against the de- fendant in the Queen's Bench Division to recover damages for this detention, the jury found that the plaintiff did not authorize Bird to pledge the shares for his own debt, or lend them to him for that purpose : — Held, that the plaintiff was estopped by the consent order made in the Chan- cery action on the 23rd of February, 1882, from recovering in this action damages for such de- tention, and that the defendant was not respon- sible for the detention of the shares by the mining company after the order had been made in the suit in the Chancery Division. Serrao v. Koel, 15 Q. B. D. 549— C. A. Same Facts— Two Offences.!— On .5th March B. was charged under 1 & 2 Will. 4, c. 32, s. 30, with trespass in pursuit of game, but acquitted for want of corroboration of a witness. On 14th May, B. was charged under s.23 with unlawfully using a dog for taking game, he having no licence. The facts were precisely the same, but on the second occasion the witness was corro- borated and the justices were satisfied, but B. was discharged on the ground of res judicata : — Held, that the justices were wrong, and that there was no res judicata as the offences were not inconsistent. Bollard v. Spring, 51 J. P. 501— D. Application technically Dififerent.] — Where a divisional court has decided against an applicant on one application, a divisional court consisting of other judges will not overrule or review that decision on a second application by him, which though technically different from the first, raises the identical point again. Hefj. V. Eardley, 49 J. P. 551— D. Same Charge.] — L. was charged with night-poaching under 9 Geo. 4, c. 69, and, in coarse of cross-examination of prosecutor's wit- nesses, the justices considered he had been illegally arrested, and discharged him. L. was again summoned for the same offence, on the same facts, when the justices held that they had no jurisdiction, as the former discharge was res judicata : — Held, that the justices were right, Reg. V. Braekenridge, 48 J. P. 223— D. Counterclaim in County Court — Action in High Court.] — Where in an action in a county court a defendant has relied upon a cause of action by way of counterclaim, upon which he has ob- tained a verdict for an amount beyond the jurisdiction of the county court, and judgment has been entered for the defendant, but no relief has been given in respect of the balance in excess of the plaintiff's claim, the defendant is not estopped from afterwards bringing an action in the High Court upon the same cause of action. Welster v. Armstrong, 54 L. J., Q. B. 236 ; 1 C. & E. 471— Mathew, J. The defendant in the High Court is estopped by the verdict and judgment of the county court from denying the cause of action of the plaintiff in the High Court, and the only question to be decided in the High Court is the amount of damages. IT). See 47 & 48 Vict. c. 61, B. 18. 11. BY DEED. Inconsistent with Document.] — ^No estoppel can be raised on a document inconsistent with the document itself. Colonial Banli v. Hef- worth, 36 Ch. D. 36 ; 56 L. J., Ch. 1089 ; 57 L. T. 148 ; 36 W. K. 259— Chitty, J. Forgery — One Joint Holder estopped— Sight of other to Sue.] — One of two executors, at 733 ESTOPPEL— ^2/ Deed. 784 various periods, some of which were more thaa -six years before the commencement of the action, iorged his co-executor's signature to transfers of stock, which were duly registered. He applied the proceeds of the transfers to his own par- poses, but continued to pay the amounts of the •dividends to the persons entitled. The other executor, on discovery of the fraud, informed the railway company that the transfers were in- valid, and demanded that the stock should be registered in the names of herself and another who had been appointed trustees of the will. The railway company declined to accede to this request, and the present action was brought that the company might be ordered to register the plaintiffs as owners of the stock : — Held, that i;hough the fraudulent executor was estopi)ed by his own action from denying the validity of the transfers, such estoppel did not afEect his inno- cent co-executor ; and that the innocent executor had in equity a sufficient interest in the stock to -enable her to sue her fraudulent co-executor and the railway companv. Barton v. JS'orth Stafford- shire Bailway, 38 Ch. D. 458 ; 57 L. J., Ch. 800 ; 58 L. T. 549 ; 36 W. K. 754— Kay, J. Validity of Issue of Debentures— Right of •other Holders.] — The secretary of a company, by direction of the directors, caused debentures pay- able to bearer to be prepared, sealed and stamped. They were then placed in a box that was kept at the company's London office, which was also the office of T. , one of the directors. Some of the debentures were delivered to an agent, N., with instructions to issue them to the public. After the commencement of the winding-up of ■the company, N., who had been unable to issue the debentures, returned them to T., who, pre- ■viously to the commencement of the winding-up, had made large advances to the company. T. ■gave some of the debentures to E. and Co., his •creditors (in satisfaction of their claims), and they took them, supposing that they had been regularly issued to T.: — Held, that the holders of valid debentures were not estopped from dis- puting the validity of those held by K. and Co. Mowatt V. Castle Steel and Iron Worlts Com- pany, 34 Ch. D. 58 ; 55 L. T. 645— C. A. Patentee disputing Validity of Patent.] — H., in 1873, took out a patent for improvements in bobbin-net and twist-lace machines ; in his ■specification he claimed, not only the whole ■combination, but also three subordinate combi- nations. In 1877 H. became bankrupt, and his trustee assigned the patent to C. in 1880 H. took out another patent for improvements in bobbin netting and twist lace, and shortly after- wards entered into partnership with S. C. "brought an action against H. & S. for infringing his patent. H. & S., delivered a defence contain- ing a denial of the infringement, and of the validity of C.'s patent. C, by his reply, stated that H. & S. were estopped from denying the validity of his patent. H. & S. obtained leave to sever in their defence and to deliver particu- lars of objections, ■without prejudice to any •question at the trial as to their being estopped from objecting to the validity of C.'s patent. The court having decided that C.'s patent was bad, on the ground that the original patentee had claimed, not only for the whole combination, but also for three subordinate combinations, one of which was not novel, allowed the appeal of S., who had taken that objection to the patent : — Held, as to H., that he was not estopped from disputing the validity of the patent granted to himself and assigned by his trustee in bank- ruptcy. Smith V. Cropper, 13 App. Cas. 249 ; 55 L. J., Ch. 12 ; 53 L. T. 330 ; 33 W. E. 753— H. L. (E.). Deposit Note of Society given by Directors.] — The directors of an unincorporated building society which had no borrowing powers bor- rowed money for the benefit of the society and gave to the lender as security the promissory notes' of the directors. The society was after- wards incorporated under the Building Societies Act, 1874 (37 & 38 Vict. c. 42), and acquired borrowing powers. The appellant, who was the representative of the lender, applied to the society for repayment of the loan, but ultimately agreed to refrain from legal proceedings against the society on the directors giving him a deposit ' note for the amount due. The directors accord- ingly gave him a deposit note under the seal of the society, stating that the money was lent by the appellant on the date of the deposit note, and he thereupon gave up to them the promis- sory notes above mentioned ; — Held, that the deposit note was not binding on the society. Sheffield Building Society, In re, Watson, Ex parte, 21 Q. B. D. 301 ; 57 L. J., Q. B. 609 ; 59 L. T. 401 ; 36 W. E. 829 ; 52 J. P. 742— D. Release of Legacies — Other Property falling in.] — A testatrix by her will bequeathed 4,0002. upon trust for investment for her niece for life, and in case the niece should die without issue, the testatrix directed that the sum should fall into her residuary estate. She also bequeathed several other pecuniary legacies, and the will contained also a residuary bequest. The estate proved insufficient to pay the pecuniary legacies in full, and the pecuniary legatees (including the niece) executed a deed of release to which the residuary legatees were not parties, by which they acknowledged the receipt of dividends upon the legacies in discharge of the amounts of the several legacies, and released the executors and also the estate of the testatrix from all further claims and demands. The niece afterwards died without issue, and the sum which thus fell into the estate was sufficient to pay the balances on the pecuniary legacies in full. The legacy of 4,O00Z. was fully recited in the deed of release : — Held, that as the release could not have been in- tended to enure for the benefit of the residuary legatees, the pecuniary legatees were not estopped by the release from claiming to have the balances of their legacies made up out of the fund that had thus fallen in. Ghost's Trusts, In re, 49 L. T. 588— Kay, .1. Lease — Rent — Mutuality. ] — The estoppel which enables a landlord who is mortgagor without the legal estate to sue for rent, is mutual, and renders him liable on the covenants in the lease. Martcup v. Bell, 1 C. & E. 19 — iVIanisty, J. Recitals in Settlement.] — A marriage settle- ment contained a recital that B. was " seised of or otherwise well entitled to ' ' certain messuages, the whole deed showing the meaning to be that B. was entitled in one shape or other to the fee simple of all the property therein conveyed : — 735 ESTOPPEL— £2/ Matter in Pais. 736 Held, a sufScient estoppel as to the part of the property in which at the date of the settlement B. had no interest whatever, but as to which her interest accrued subsequently. HoHon, In re, Horton v. Perhs, 51 L. T. 420— Kay, J. III. BY MATTER IN PAIS. Action against Owner by Xstoppel and Beal Owner.] — Goods had been supplied to the M. Mansions upon the order of the housekeeper. The vendor sued the owner and the secretary for payment. The secretary had previously paid for goods supplied by the plaintiffs by cheques, signed " M. Mansions account :" — Held, that the doctrine of Scarf v. Jardine (7 App. Gas. 345) applied, and that the plaintifE could not sue the secretary, whose liability depended only on es- toppel, at the same time as the real owner. Jones V. Ashiuin, 1 C. & B. 159 — Cave, J. Sale by Apparent Owner — Attempt to oust Purchaser.] — If a person, being sole next of kin, is in possession of a chattel term without letters of administration having been obtained, and there are no debts due bj' the deceased, or any- thing to prevent such next of kin from using the term as his own, then he, the beneficial owner, can sell the term ; and if the purchaser goes into possession under the contract of sale, the vendor cannot afterwards, either by obtaining a grant of administration, or in any other way, disaffirm his own act, and annul the contract. Hamill v. '' " y, 12 L. R., Ir. 400— Ex. D. Jus tertii — Execution Debtor — Claimant in Interpleader.] — A mere estoppel, which pre- cludes the execution debtor from denying the title of the claimant in an interpleader proceed- ing, confers no title upon the claimant as against the execution creditor. Richards v. Johnson (28 L. J., Ex. 322), followed. Richards v. Jenkins, 18 Q. B. D. 451 ; 56 L. J., Q. B. 293 ; 56 L. T. 591 ; 35 W. R. 355— C. A. Principal and Agent— Set off.]— Whether the doctrine that on a contract with an agent for an undisclosed principal, the buyer can set oflE against the principal a debt due from the agent, is founded on estoppel, Qu^re. Cooke v. JSshelby, 12 App. Gas. 271 ; 56 L. J., Q. B. 505 ; 56 L. T. 673 ; 35 W. E. 629— H. L. (E.) Agreement by Manager of Company.] — G. pro- posed to H., the general manager of the M. & 0. Bank, that the bank should advance him 8,300Z., to enable him to conclude a contract for the purchase of an unpaid vendor's interest in a colliery. H. had authority to make the ad- vance. An agreement between G. and the bank, providing for the loan of the money by the bank, and the mortgage of the interest in the colliery to be purchased to the bank to secure repayment of the loan and charges, was prepared by a soli- citor on H.'s instructions and signed by G, H. then declined to make the agreement without consulting the directors, and obtained O.'s sig- nature to a document to the effect that the agreement was subject to the approval of the directors. On the same day, after a meeting of the directors, H. told C. that the directors approved, and that the bank would advance the money. The agreement was never signed by anybody on the part of the bank. Subsequently H. told C. he ought to be more firmly bound to take the money from the bank, and induced him to sign a document to the effect that, in con- sideration of the bank's agreeing to carry out the arrangements mentioned in the agreement, he agreed to pay the bank charges named therein, whether the bank carried through the transaction or not. In fact, the directors did not approve of the agreement, and H. acted under an erroneous impression that they did. The bank refused to find the money, and C. was in consequence unable to complete his contract : Held, that the bank was estopped from denying such an agreement. Mancliester and Oldham Banli V. Coolt, 49 L. T. 674— Per A. L. Smith, J. Postmaster-General — Authority of Clerk — Telegrams.] — Where a certain sum is charged for a telegram and the sender is afterwards called upon to pay an increased sum : — Held, that he is bound to pay the amount so claimed, as the Postmaster-General is in no way estopped from suing, and is not bound by inaccurate re- presentations made by a clerk in bis employ. Postmaster- General v. Oreen, 51 J. P. 582 — D. Bill of Sale treated as Valid — Declared to be Invalid.] — Where the grantor of a bill of sale which is afterwards found to be invalid has derived advantage from treating it as valid, he cannot set up its invalidity for the purpose of obtaining a further advantage. Roe v. Mutual Loan Fund Association, 19 Q. B. D. 347 ; 56 L. J., Q. B. 541 ; 35 W. R. 723— C. A. Sec also Gandy\. Gandy, 30 Gh. D. 57 ; 54 L. J. Gh. 1154 ; 53 L. T. 306 ; 33 W. R. 803— G. A. Beceipt of Money under Deed bars Bepndia- tion of Execution. ] — -Where a deed of assignment by debtors to a trustee for the benefit of all creditors who should execute the deed was exe- cuted by the plaintiffs, who appended a note that they executed only in respect of certain claims scheduled to the deed and amounting to $73,531, and it appeared that subsequently thereto they received a sum of money from the trustee by virtue of their execution of the deed : — Held, that the plaintiffs were bound, and that, as they had received payment under the deed, they could not be heard to repudiate it, and deny their execution. Yarmouth Exchange Bank v. Blethen, 10 App. Gas. 293 ; 54 L. J., P. C. 27 ; 53 L. T. 537 ; 33 W. E. 801— P. C. Beceipt of Dividend on Composition — Action. for Balance.] — The plaintiffs, who were creditors, of the defendant, a trader in insolvent circum- stances, took an active part in procuring the acceptance of a scheme of composition of the defendant's affairs, and obtained proxies from the debtor's other creditors. At a meeting of the creditors the plaintiffs withdrew the proof of their debt against the estate of the defendant on the ground that, owing to a fraudulent statement on his part on an earlier occasion, they had been induced to forbear to press their claim against him. They, however, proposed a resolution that a composition of lis. %d. in the pound should be accepted in satisfaction of the debts due from the debtor, and by using the proxies held by them they carried the resolution. Adividendof 11.?. 3rf. in the pound was received by the plaintiffs on their proof. They subsequently brought their 737 ESTOPPEL— B?/ Matter in Pais. 738 action in the county court for the unpaid balance of their debt, and the county court judge gave a verdict and judgment for the amount claimed. The defendant obtained a rule nisi to set aside the verdict and judgment and for a new trial ; — Held, on the argument of the rule, that the plaiutifEs, having acted as they had done, had assented to the composition otherwise than by proving their debt and accepting a dividend on it, and that they could not maintain an action for the unpaid balance of their debt, and that judgment should be entered for the defendant. Thorp V. Bakin, 52 L. T. 856— D. Payment of Kent — Jus tertii.] — Where a person claiming to be assignee of the reversion receives rent from the tenant by fjaud or mis- representation, such payment is no evidence of title ; but where there is no fraud or misrepre- sentation, such payment is primS, facie evidence of title, and the tenant can only defeat that title by showing that he paid the rent in ignorance of the true stete of the title, and that some third person is the real assignee of the reversion, and entitled to maintain ejectment. Carlton v. Bowoock, 51 L. T. 659 — Gave, J. Certificate of Shares — Handamns to compel Registration.] — A prerogative writ of mandamus will not lie to compel a company to register as a holder of shares therein, a person to whom they have issued certificates in respect of such shares where the company have issued prior certificates in respect of such shares to some one else, with out clear proof that the person to whom the last ■certificates were issued has a better title than the person to whom the earlier ones were issued, •even though the person holding the earlier certi- ficates has not been entered in the company's register as the holder of such shares. When such a writ is asked for the company are not estopped from relying on the actual facts of the case. Reg. v. C/tarnwood Forest Railway, 1 C. & E. 419 — Denman, J. AflSrmed in 0. A. See ■also Company, VI., 9. Calls — Acting as Member of Company.] — Where a member of a mutual insurance company, afterwards converted into a limited company, las vessels on its books as insured, and pays calls and otherwise acts as if he were a member of the company, he is, in any action brought against him by the limited company for calls on losses, estopped from denying his liability, and Jrom setting up either any irregularity in the transfer from the one company to the other, or that the losses were paid without any stamped policies being entered into in contravention of 30 Vict. c. 23, s. 7. Barrow Mutual Ship In- surance Company v. Ashhurner, 54 L. J., Q. B. 377 ; 54 L. T. 58 ; 5 Asp. M. 0. 527— C. A. Invalidly made — Liability of Director.] — The articles of association of a company pro- vided that the board of directors should consist of not less than three directors, but when a call was made there were only two directors remaining, one of whom was the defendant, who assisted in passing the resolutions for the call. In an action against the defendant for calls : — Held, that he by his conduct was estopped from disputing the validity of such resolutions, and was liable to pay the amount of the call. Faure Eleetric Accumu- lator Company v. Phillipart, 58 L. T. 525 — Hawkins, J. Issue of fully-paid Shares.]— When a com"pany issues shares to directors as fully paid- up shares, and afterwards endeavours to recover a call on such shares : — Held, that the company was prevented by estoppel from recovering the amount of such calls. Christchwrch Oas Co. v. 51J. P. 374— Mathew, J. Misrepresentation that Change of Company only Change of Name.]— T., P., and D., three directors of a company, gave a joint guarantee to bankers to secure the balance which might be due at the closing of their account to the extent of 2,000Z. In September, 1880, the company went into voluntary liquidation, and immediately re-commenced business under the same directors, but as a new company with the addition of the word " manufacturing " to their former title. The termination of the old company was not disclosed to the bankers, who continued their business with the company without intermission, merely putting the addition to the name on the cheques and in their books. P. died in Decem- ber, 1880. In November, 1881, the new company was wound up, when it was indebted to the bankers, who commenced an action upon the guarantee for the amount due to them : — Held, that T. and D. by not having given notice to the plaintiffs upon the death of P., that they declined to be answerable for any other amount than that which was due at P.'s death, and by their concealment of the fact that a new company had been formed, and by the tenor of their con- duct in carrying on the business as before, were estopped from denying their liability upon the guarantee, and were liable to the full amount thereby secured. Ashby v. Bay, 54 L. T. 408 ; 34 W. R. 312— C. A. Affirming 54 L. J., Ch. 935— V.-C. B. Bill of Lading.] — A company owned a line of steamers called " The Monarch Line," running between New York and London. A. was in the habit of shipping goods on steamers running on this line. A. shipped goods in a steamer at New York, and received a bill of lading made out in the ordinary form given by the company fdr goods shipped on their steamers, save that it had the words "extra steamer" added after the words " Monarch Line of Steamships." At London an overside release for the goods was signed and given by the company's agents to A., and the freight received by them from A. : — Held, in an action by A. against the company for non- delivery of the goods, that the company were estopped from saying that the contract of ship- ment was not made with them. SerwMn v. Royal Exchange Shipping Compan/y, 1 C. & E. 413— Huddleston, B. Affirmed in C. A. See also cases sub tit. Shipping (Bill of Lading). Conduct of Patentee — Infringement.] — In an action by P., a patentee for infringement against persons who had bought machines from B., it was proved that P. had asked the purchasers to try his machine, saying that it was a better machine than B.'s, but gave no intimation that he considered B.'s machine an infringement of his patent, though he admitted that at the time he did consider it to be so :— Held, that as the B B 739 ESTOPPEL— jB?/ Matter in Pais. 740 purchasers did not depose that when they bought B.'s machines they were ignorant of P.'s patent, nor was there any reason to believe that they were ignorant of it, or that P. supposed them to be so ; P. had not on the ground of estoppel, lost hie right to sue them for an infringement in using B.'s machines, it not being the duty of a patentee to warn persons that what they are doing is an infringement, and P.'s conduct not amounting to a representation that it was not an infringement. Proctor v. Bennis, 36 Ch. D. 740 ; 57 L. J., Ch. 11 ; 57 L. T. 662 ; 36 W. B. 456— C. A. Advice Notice— Negligence in issuing two Notes.] — The defendants, having received a con- signment of wheat, sent to the consignees an advice note, which described the consignment as " sacks wheat, four truclss," and did not contain any details as to weight, rates or charges, but across the printed form was written, " account to follow." The consignees gave B. a delivery order in respect of this wheat, and he obtained an advance from the plaintiffs upon it ; the plaintiffs sent this delivery order to the defen- dants, and they accepted it. On the following day the defendants sent to B. another advice note on a printed form similar to the one already sent, but across the upper part was written the words, " charges only ; " the invoice number was different ; the consignment was described as 151 sacks of wheat ; the weight, the rate, and the amount of charges were filled in. B. filled up the delivery order at the bottom in favour of the plaintiffs, produced it to them, and obtained a second advance from them, as they believed it to relate to a second parcel of wheat. The plain- tiffs delivered this order to the defendants, who accepted it, and who allowed the plaintiffs on both occasions to take samples of the wheat. There was, in fact, only one parcel of wheat, and the two advice notes related to the same parcel. B. went Into liquidation, and the plaintiffs, having lost the amount of one of the advances so made by them, sued the defendants for the amount : — Held, that the plaintiffs were entitled to recover the amount claimed, for that the defendants had so dealt with the wheat and advice notes as to lead the plaintiffs to believe that there were in fact two consignments of wheat, and that they were in consequence estopped from afterwards alleging that there was in fact but one consignment of wheat. Coventry v. Great Eastern Railway, 11 Q. B. D. 776 ; 52 L. J., Q. B. 694 ; 49 L. T. 641— C. A. Negligent Bepresentation of Wharfinger.] — Goods were in 1S75 stored by brokers with wharfingers, who issued a warrant for the same. In 1885 the servants of the defen- dant, who had taken over the wharf and business, delivered the goods by mistake to certain persons instead of goods to which they were entitled, and the defendant was not made aware of the mistake. The warrant had been negotiated, and was in January, 1886, in the possession of B. and E. In that month, no rent having been paid for the goods since 1880, the defendant wrote two letters to the plaintiff, who had previously taken over the business of the brokers and carried it on under their name, informing him, as the supposed holder of the warrant, and as the person presumedly interested in the goods, that the goods were in hand, that rent was due, and that, unless it was paid, the goods would be sold to cover the amount due. The plaintiff made no reply, but afterwards, and in consequence of receiving these letters, he bought the warrant from B. and E. and applied to the defendant for the goods, when the defen- dant first discovered that they were no longer in his possession. In an action to recover damages for a wrongful conversion of the goods :• — Held, that the defendant was liable, being estopped from denying that he had the goods specified in the warrant, because he had by his negligent misrepresentation led the plaintiff to believe that the goods were in his possession, and such mis- representation was the cause of the plaintiff's loss, the plaintiff having purchased the warrant in consequence of the same. Seton v. Lafone, 19 Q. B. D. 68 ; 56 L. J.. Q. B. 415 ; 57 L. T. 547 ; 35 W. R. 749— C. A. Negligence of Mortgagee.] — The plaintiff, mortgagee of a policy of life insurance, handed it to the mortgagor for a particular purpose. On the plaintiff demanding it back from time to time, the mortgagor made excuses for not doing so ; and the plaintiff then forgot that it had not been returned. Afterwards the mortgagor de- posited the policy with Ihe defendants to secure an advance. The plaintiff gave notice of his interest to the insurance company before the defendants : — Held, that the plaintiff was en- titled to the policy as against the defendants, and that the conduct of the plaintiff had not been such as to estop him from asserting his claim against the defendants. Sail v. West End Advance Company, 1 C. & E. 161 — Williams, J. Proximate Cause of Loss.] — A company in- corporated under a charter granted by Charles It. were possessed of a common seal, and also of a certain amount of stock which stood in their names in the books of the defendants. The seal was entrusted to the custody of their clerk, in whom implicit confidence was placed, and who managed the affairs of the company without being subject to any control or supervision. The clerk affixed the seal of the company in the presence of two witnesses, who were not cor- porators, to two powers of attorney for the transfer of the stock belonging to the company. These transfers were lodged with the defendants, who in due course paid over to the clerk the proceeds of the sale of the stock. The clerk was subsequently tried and convicted of fraud in aflBxing the seal to the transfers without the authority of the company, and of appropriating the proceeds of the sale of the stock to his own use. In an action for a declaration that the company were entitled to have the stock stand in their names in the defendants' boolss, and that they might be ordered to replace the stock in the plaintiffs' names : — Held, upon the autho- rity of Banlt of Ireland v. Trustees of Mvans' Charities (5 H. L. Gas. 889), that even assuming the company were negligent in entrusting the seal to the custody of their clerk, the negligence necessary to entitle the defendants to insist that the transfers were invalid must be negli- gence in or immediately connected with the transfers themselves, and that, inasmuch as the forgery committed by the clerk, and not the negligence of the company in entrusting him with the seal, was the proximate cause of the 741 EVIDENCE — Judicial Notice — Presumptions. 742 loss, the defendants were liable to replace the stock. Merohants of the Staple v. Bauh of England, 21 Q. B. D. 160 ; 57 L. J., Q. B. 418 ; 36 W. K. 880 ; 52 J. P. 580— C. A. Notice to Treat — Validity.] — The Commis- sioners of Sewers, acting under the powers of 57 Geo. 3, c. 29, gave the plaintiff notice to treat for the purchase of his property for the purpose of widening a street. The whole of the property was not required for that purpose, and it ap- peared that the improvement contemplated was rather lowering the level of, than widening the street. The plaintiff negotiated with the com- missioners during eight mouths on the basis of the notice, and endeavoured to obtain from them as large a price as he could for the property. On his failing to obtain so large a price as he desired he brought an action for an injunction to restrain the commissioners from proceeding on the notice to treat. On motion for an in- junction : — Held, the plaintiff during the nego- tiations had not such knowledge that the com- missioners did not bonS, fide want his houses for purposes within their compulsory powers as to preclude him now from objecting to their taking the houses. Lyruih v. Commis- sioners of Sewers, 32 Ch. D. 72 ; 55 L. J., Ch. 409; 54 L. T. 699; 50'j. P. 548— C. A. Ke- versing 34 W. R. 226— Kay, J. EVIDENCE. I. Judicial Notice, 742. II. Pbesttmptions, 742. III. Admissions, 743. I"V. Declabatio^-s and FAMiLr Tradi- tion, 743. T. Entries, 745. VI. Documents. 1. Judicial Proceedings, 746. 2. Maps, lil. 3. Registers, Til, i. Wills, lis. 5. Minute Boohs, 748. 6. Reports — Public Body, 749. 7. Bankers' Books, 749. 8. Letters, 750. 9. Proof — Secondary Evidence, 750. 10. Parol Evidence — Admissibility, 751. VII. Witnesses. 1. Competency, 15i. 2. Where Corroboration necessary, 754. 3. Practice — Privilege, 754. VIII. Examination ov Witnesses under Commission. 1. When Witness Abroad, 757. 2. When Witness within Jurisdiction, 758. IX. Evidence on Affidavit. 1. Practice geiterally, 761. 2. Cross- Examination, 763. X. In Particular Cases. 1. In Bastardy Cases — See BASTARDY. 2. On Winding up of Companies — See Company, XI., 12. 3. Ill Criminal Cases — See Criminal Law. 4. On Appeal — See Appeal. XI. Costs op Evidence — See Costs. I. JUDICIAL NOTICE. Places on Admiralty Chart.] — A court should take judicial notice of the geographical positions of, and general names applied to, a district as shown on the Admiralty chart. Birrell v. Dryer, 9 App. Gas. 345 ; 51 L. T. 130 ; 5 Asp. M. C. 267 — H. L. (Sc.) II. PaESTTMPTIONS. Death — Person not heard of for Seven Years.] — If a person has not been heard of for seven years, there is a presumption of law that he is dead ; but there is no presumption as to when, during the seven years, he died. The person upon whom it rests to prove, either that he was alive or dead at a particular time, must do so by distinct evidence. Rhodes, In re, Rhodes v. Rhodes, 36 Ch. D. 586 ; 56 L. J., Ch. 825 ; 57 L. T. 652— North, J. A. K. was last heard of in 1873 ; but thei-ewas no evidence as to when he died. He died en- titled to a sum of money, which had recently been paid to his administrator : — Held, that (in the absence of any evidence as to when he died) neither his next-of-lcin in 1873, nor his next-of- kin in 1880, were entitled to have the money paid to them. lb. Although there is no legal presumption as to the actual time of death, there is a presumption at law, when a, party has been absent and not heard of for seven years, that he is dead. The plaintiffs having insured the life interest of one H. with the defendant insurance company for the better security of certain advances to H., and H. not having been seen or heard of for a period of over seven years : — Held, that H. must be taken to be dead, and that the plaintiffs were , entitled to the amount of the life policy and bonuses. Willyams v. Scottish Widotcs Emid, 52 J. P. 471— Stephen, J. Legitimacy of Children.] — The presumption in favour of the legitimacy of a child born in wedlock is not a presumptio juris et de jure, but may be rebutted by evidence, which must be clear and conclusive and not merely resting on a balance of probabilities. Bosvile v. Attorney- General, 12 P. D. 177 ; 56 L. J., P. 97 ; 57 L. T. 88 ; 36 W. E. 79— D. Legal Origin for existing state of things. ] — In the absence of evidence as to the origin of an existing state of things, an illegal origin is not to be presumed, if it might naturally have had a legal origin. Croft v. Ricltmans^ worth Highway Board, 57 L. J., Ch. 589 — Kekewioh, J. B B 2 743 EYIDE^CE— Admissions. 744 III. ADMISSIONS. By Counsel — Proof of Facts dispensed with, ] — At the trial of an action counsel made an admission as to the law of Scotland, but the judge did not consider himself bound by that admission and received evidence upon the point : Held, that as the question of Scotch law was one of fact, proof of which like proof of other facts might be dispensed with by the admission of counsel, the judge was wrong in going into the matter. JlrquJiart v. Butterfield, 37 Oh. D. 357 ; 57 L. J., Ch. 521 ; 57 L. T. 780 ; 36 W. E. 376— C. A. Between Co-defendants. ] — Admissions between co-defendants under Ord. XXXII. r. 2, of the Eules of the Supreme Court, 1883, to which the plaintiff is not a party, cannot be entered as evi- dence against the plaintiff, and therefore cannot be included in an order for taxation and payment of the general costs of the action. Dodds v. 'lulie, 25 Ch. D. 617 ; 53 L. J., Ch. 598 ; 50 L. T. 320 ; 32 W. E. 424— V.-C. B. Of Mother as to Legitimacy of Child. ] — When the legitimacy of a child born in wedlock is in question, previous statements of the mother that the child is a bastard are admissible as evidence of her conduct, though she would not be allowed to make such statements in the witness-box. The Aylesford Peerage, II App. Cas. 1 — H. L. (E.). By Agent — letter from Captain to Owners.] A letter from the master of a ship to her owners is admissible as evidence against them in regard to the facts therein stated ; but the opinion of the master in such a letter is not evidence. The Solway, 10 P. D. 137; 54 L. J., P. 83; 53 L. T. 680 ; 34 W. K. 232 ; 5 Asp., M. C. 482— Hannen, P. Engineer's Log-book.] — The engineer's log-book kept on board a steamer is admissible as evidence against the shipowner. The Earl of Dumfries, 10 P. D. 31 ; 54 L. J., P. 7 ; 51 L. T. 906 ; 33 W. R. 568 ; 5 Asp., M. C. 342— Butt, J. Previous Belief — Parliamentary Oaths Acts.] — Statements and avowals of a defendant as to his belief in a Supreme Being, and as to whether an oath, as an oath, has any binding force upon his conscience, are admissible in the trial at bar of an action for penalties under the Parliamentary Oaths Act, 1866, even though such statements or avowals were made before he was elected a member of the parliament in which he sat and voted. Attorney- General v. Sradlaugh, 14 Q. B. D. 667 ; 54 L. J., Q. B. 205 ; 52 L. T. 589 ; 33 W. R. 673 ; 49 J. P. 500 — C. A. IV. DECLABATIONS AND FAMILY TRADITION. Of Deceased Person — Legitimacy — Family Tradition.] — P. died intestate, and the Crown claimed his property on the ground that he was illegitimate. The evidence which was relied on to prove illegitimacy was (1) declarations made and letters written by P. whilst alive asserting his own illegitimacy ; (2) absence of proof that the man whom P.'s next-of-kin asserted to be P.'s legitimate father was alive at the date of P.'s conception ; (3) family tradition and admissions by the next-of-kin now claiming the property : — Held, (1) that declarations made by a deceased person before his death as to his own illegitimacy were admissible in evidence-; (2) that it lay on the claimant to prove that the man asserted by her to be the father of P. was alive at the date of P.'s conception, before it was necessary for the Crown to prove non-access by that man to P.'s mother at that date ; and (.3) that family tradition was admissible to cor- roborate P.'s declaration as to his own ille- gitimacy. Perton, In re, Pearson v. Attorney- General, 53 L. T. 707— Chitty, J. Where the legitimacy of a child bom in wed- lock is in issue, previous statements by the mother that the child is a bastard are admis- sible as evidence of her conduct, although she could not be allowed to make such statements in the witness-box. Tlie Aylesford Peerage, 11 App. Cas. 1— H. L. (E.). Declarations by a reputed father contained in business letters written by one of his daughters in his name and under his dictation were ad- mitted as evidence after his death of the date of their birth upon the question of their legitimacy. Turner, In re, Glenister v. Harding, 29 Ch. D. 985 ; 53 L. T. 528— Chitty, J. Only received in Questions of Pedigree.] — The defendant to an action for goods sold, work done, and money paid, set up the defence of infancy. In support of this defence an affi- davit made by his father, since deceased, in an administration suit, to which the plaintiff in this action was not a party, contaioing a state- ment by the father as to the place and date of the defendant's birth, was tendered and received in evidence : — Held, that such a declaration was only receivable in questions of pedigree, and that no such question was raised in this case, so that the case did not fall within that exception to the general rule as to the inadmissibility of hearsay evidence. Haines v. Gwthi-ie. 13 Q. B. D. 818 ; 53 L. J., Q. B. 521 ; 51 L. T. 645 ; 33 W. B. 99 ; 48 J. P. 756— C. A. A. and B. were married in 1806, and C, their daughter, was born in 1811. A. and B. were dead, and there was evidence that, after the birth of C, B. had stated that she had had a son, who was older than C, and had died before the birth of the latter. The Christian name of the son could not be ascertained, and there was no other evidence of his birth or death : — Held, that B.'s statements were admissible as a decla- ration by a deceased person on a question of pedigree, that the death of the son of A. and B., though his Christian name was unknown, might be presumed to have occurred between 1806 and 1811, and that a grant of administration should be made, describing him by his surname with his Christian name in blank. Thompson, In goods of, 12 P. D. 100 ; 56 L. J., P. 46 ; 57 L. T. 373 ; 35 W. R. 384— Hannen, P. Family Reputation and Tradition.]— Where a witness deposed that she had received a letter from her niece A. relating the fact of the death of A.'s father (which was material to the issue in the case), and that the family repute founded on that letter waa that A.'s father was dead : — 745 EVIDENCE— £?n, Enforcing Attendance of Witness out of Jurisdiction.] — When an action and "all matters in difference " between the parties have been referred by consent to an arbitrator, no writ of subpoena will be granted under 17 & 18 Vict. e. 34, s. 1, in order to compel the attendance at the hearing before the arbitrator of witnesses residing within the United Kingdom but out of the jurisdiction of the Queen's Bench Division ; for the hearing before the arbitrator is not a " trial " within the meaning of that enactment. Tlall V. Brand, 12 Q. B. D. 39 ; 53 L. J., Q. B. 19 ; 49 L. T. 492 ; 32 W. R. 133— C. A. Hostile Witness — Discretion of Judge.] — At the trial of an action the defendant s counsel, in order to show that a witness called by him was hostile, and to obtain leave to treat him as such under s. 22 of the Common Law Procedure Act, 1854, asked the judge to look at an affidavit made by the witness in a former action. The judge, being of opinion that there had been nothing in the witness's demeanour, or in the way he had given his evidence, to show that he was hostile, refused to look at the affidavit : — Held, on motion for a new trial, that the discretion given to the judge under s. 22 of the Common Law Procedure Act, 1854, was absolute, and the court had no jurisdiction to review his decision. Mice v. Howard, 16 Q. B. D. 681 ; 55 L. J., Q. B. 311 : 34 W. E. 532— D. Eefusal to Answer — Tendency to Criminate.] — Where a question is in form an innocent one, it is not a sufficient ground of refusal for a witness to say that he believes his answer to such a .question will or may criminate him ; but he must satisfy the court that there is a reasonable probability that it would or might do so. Gilbert, Ex iiarte, Genese, In re, 3 M. B. E. 223 — C. A. Not allowed — Statement of Claim admitted.] — The statement of claim in salvage actions should contain such facts as, if admitted, will constitute the whole of the plaintiff's case, as the court will decline to admit evidence at the hear- ing, except on special grounds, where the facts alleged in the statement of claim are admitted. The Hardwiclt, 9 P. D. 32 ; 53 L. J., P. 23 ; 50 L. T. 128 ; .32 W. E. 598 ; 5 Asp. M. C. 199— Hannen, P. Privilege — Solicitor and Client.]— All com- munications between a solicitor and his client are not privileged from disclosure, but only those passing between them in professional confidence and in the legitimate course of pro- fessional employment of the solicitor. Com- munications made to a solicitor by his client before the commission of a crime for the purpose of being guided or helped in the commission of it, are not privileged from disclosure. Reg. v. Cox, 14 Q. B. D. 153 ; 54 L. J., M. C. 41 ; 52 L. T. 25 ; 33 W. E. 396 ; 49 J. P. 374 ; 15 Cox, C. C. 611— C. C. E. C. and E. were partners under a deed of partnership. M. brought an action against E. & Co., and obtained judgment therein, and issued execution against the goods of E. The goods seized in execution were then claimed by C. as his absolute property under a bill of sale executed in his favour by E. at a date subsequent to the above-mentioned judg- ment. An interpleader issue was ordered to determine the validity of the bill of sale, and upon the trial of this issue, the partnership deed was produced on C.'s behalf, bearing an indorse- ment purporting to be a memorandum of dis- solution of the said partnership, prior to the commencement of the action by M. Subse- quently C. and E. were tried and convicted upon a charge of conspiring to defraud M., and upon that trial the case for the prosecution was, that the bill of sale was fraudulent, that the partner- ship between E. and C. was in truth subsisting when it was given, and that the memorandum of dissolution indorsed on the deed was put there after M. had obtained judgment, and fraudu- lently ante-dated, the whole tr.ansaction being, it was alleged, a fraud intended to cheat M. of the fruits of his execution. Upon the trial a solicitor was called on behalf of the prosecution to prove that after M. had obtained the judgment C. and E. together consulted him as to how they could defeat M.'s judgment, and as to whether a bill of sale could legally be executed by E. in favour of 0. so as to defeat such judgment, and that no suggestion was then made of any dissolution of partnership having taken place. The reception of this evidence being objected to, on the ground that the communication was one between solicitor and client, and privileged : the evidence was received, but the question of whether it was properly received was reserved for this court : — Held, that the evidence was properly received. Oromach v. Seathcote (2 B. & B. 4) ; Rex v. Smith (1 Phil. & Arn. on Evidence, 118) ; and Boe v. Harris (5 C. & P. 592), overruled. FoUett V. Jefferyes (1 Sim., N. S. 1) ; Russell V. Jachson (9 Hare, 387) ; and Gartside v. Outram (26 L. J., Ch. 113), approved. II. Judgment having been signed against a married woman in an action, an inquiry was directed before a master whether she was possessed of any separate estate. The solicitor to the trustees of her marriage settlement, being subpoenaed by the judgment creditor upon the inquiry as a witness, and to produce documents, stated that the deed of settlement was in his possession as solicitor to the trustees, but refused to state the names of the trustees or produce the deed on the ground of professional privilege : — Held, that he must state the names of the trustees and pro- duce the deed. Bursill v. Tanner, 16 Q. B. D. 1 ; 55 L. J., Q. B. 53 ; 53 L. T. 445 ; 34 W. K. 35 — C.A. 757 EVIDENCE— On Commission. 758 VIII. EXAMINATION OF WITNESSES TJNDEB COMMISSION. 1. WHEN WITNESS ABROAD. When granted.]— L. granted to T. an exclu- sive licence to use in England a certain patented invention for making sugar. This invention was also patented in America, and M., an American sugar manufacturer, had a licence for its use in the United States. L. brought his action against T. to have the licence rectified, alleging that the real agreement between the parties was that the licence was not to interfere with the importation into England of sugar made abroad under the patent. The statement of claim alleged that M. had introduced L. to T., and that the negotia- tions between L. and T. had proceeded on the understanding that sugar made abroad under the patent might be imported ; but there was no allegation, nor did it appear in evidence, that M. had taken part in the negotiations. L. applied to have a commission to examine M. in America : — Held, that if it appeared that the evidence of M. would be material, the commission ought to be granted, there being nothing to shew that M. was keeping out of the way to avoid cross-exami- nation. Berdan v. Ct-reenwood (20 Ch. D. 764, n.) distinguished. Langen v. Tate, 24 Ch. D. 522 ; 53 L. J., Ch. 361 ; 49 L. T. 758 ; 32 W. R. 189— C. A. But held, that, on the materials before the court, the commission should be refused, there being nothing to show that M. had taken such part in the negotiations as to make his evidence material. The court, however, as an indulgence, gave the plaintiff an opportunity of adducing evidence to show that M. could give material evidence. li. Where it is sought to have a material witness examined abroad, and the nature of the case is such that it is important that he should be examined here, the party asking to have him examined abroad must show clearly that he cannot bring him to this country to be examined at the trial. Lawson v. Vacuwm Brake Com- pany, 27 Ch. D. 137 ; 54 L. J., Ch. 16 ; 51 L. T. 275 ; 33 W. E. 186— C. A. If it is shown that there are material witnesses resident abroad whom a party wishes to examine, a commission to examine them abroad will be granted if there is any reasonable ground for their not coming here, unless a case is made showing that it is necessary for the purposes of justice that they should be examined in England. Armour v. Walher, 25 Ch. D. 673 ; 53 L. J., Ch. 413 ; 50 L. T. 292 ; 32 W. R. 214— C. A. A party is not entitled to a commission ex ■debito justitise upon showing that a material witness is resident out of the jurisdiction. The granting of the commission is a matter of judicial discretion to be exercised according to the particular circumstances of each case. In a case where it was shown that witnesses were out of the jurisdiction and their examination on commission abroad would be much less expensive than bringing them to the trial in England, and there was nothing to show that their presence in court was essential :— Held, that the commission should issue. Cooh v. Allcoeh, 21 Q. B. D. 178 ; 57 L. J., Q. B. 489 ; 36 W. R. 747— C. A. Parties to Action — Plaintiff.] — The court has power to order a commission to issue for the examination abroad of a party to an action, though the circumstances which will induce the court to make such an order are different from those required to be shown on an applica- tion for a commission to examine a mere witness. Where a plaintiff residing abroad claimed as an heir-at-law who had been missing for twenty- four years, Kay, J., ordered a commission to issue to take his evidence abroad, without pre- judice to the right of the defendant to cross- examine him at the trial in England in the presence of witnesses who could speak to his identity : — Held, on appeal, that the order must be varied by directing that the depositions of the plaintiff were not to be read at the trial without the consent of the defendant. Kadin v. Bassett, 25 Ch. D. 21 ; 53 L. J., Ch. 253 ; 49 L. T. 454 ; 32 W. R. 70— C. A. Affidavit in Support.] — ^A plaintiff who desires to be examined on commission must make out by affidavit a strong prima facie case why he should not attend and be examined at the trial ; and the onus is not on the defendant in the first instance to show why he should attend to be examined at the trial. A plaintiff is not entitled to be examined on commission in the absence of any affidavit by himself, showing strong and positive reasons for his not attending to be examined at the trial. Light v. Antioosti Com- 8 L. T. 25— D. Form of Commission — Misdescription of Conrt — Cross-examination.] — In a divorce suit the petitioner obtained a commission to examine witnesses in India, addressed to " The Judges of the Supreme Court at Calcutta." The Supreme Court was abolished by 24 & 25 Vict. c. 104, by which a " High Court of Judicature at Fort William in Bengal," was established, with all the jurisdiction, power and authority of the abolished court. Witnesses were examined under the commission, and cross-examined on behalf of the respondent : — Held, that the evidence must be admitted at the trial, as the commission was in effect addressed to the judges of whatever was the highest court at Calcutta, and the judges of the High Court answered the description, and that the cross-examination of witnesses was no waiver of the right to object to the evidence. Wilson V. Wilson, 9 P. D. 8 ; 49 L. T. 430 ; 32 W. R. 282— C. A. Names of Witnesses.] — If the names of some of the witnesses to be examined on a com- mission abroad are specified, the court may grant the commission for the examination of the wit- nesses named "and others." Nadin v. Bassett, supra. Single Commissioner — Administration of Oath.] — When a single commissioner is appointed to take evidence abroad, the commission should authorize him to administer the oath to himself. Wilson V. Be Coulon, 22 Ch. D. 841 ; 53 L. J., Ch. 248 ; 48 L. T. 514; 31 W. R. 839— Fry, J. 2. WHEN WITNESS WITHIN JURIS- DICTION. Evidence de bene esse — Witness above Seventy Years of Age — Affidavit.] — The court 759 EVIDENCE— On Commission. 760 has iurisdiotion on a proper occasion, when it is " necessary for the purposes of justice," to make an order for an examination de bene esse of witnesses upon an ex parte application, the order being taken by the applicant at his peril, and subject to the risk of being discharged on suffi- cient grounds. An order was made in chambers on an ex parte application by the plaintiffs to examine de bene esse thirty witnesses upon an affidavit of the plaintiffs' solicitor merely stating that he was advised that they were material witnesses — that they were all above seventy years of age, and that he was advised and believed that by reason of their age it was desirable that their examination should be taken without delay. This order was discharged on motion in court, mainly on the ground that the affidavit was insufficient : — Held, that the affidavit did not ■ satisfy the requirements of Ord. XXXVIII. r. 3, but leave was given to put in a further affidavit stating what information had been obtained, and what steps had been taken to obtain such infor- mation as to the age of the different witnesses, and also stating generally the facts which the particular witnesses were going to depose to. Although the fact that a witness is seventy years old is generally a good primS. facie ground for an order for his examination de bene esse, such a practice will not necessarily be applied to an extraordinary case, e. g., where an order has been made to examine thirty witnesses. On a subsequent application made on a further affi- davit of the solicitor, in which he divided the witnesses into four classes who were to depose to four different heads of evidence : — The court declined to allow the examination de bene esse of ten of the proposed witnesses who were between seventy and seventy-five years old, without pre- judice to a subsequent application for leave to examine them on grounds other than age, but allowed the other twenty witnesses above seventy- five to be examined de bene esse upon the under- taking of the plaintiffs' counsel to produce at the trial, if so requested by the defendant, any of such witnesses who might be then alive. Bidder V. Bridges, 26 Ch. D. 1 ; 50 L. T. 287 ; 32 W. R. 445— C. A. Affirming 58 L. J., Ch. 479 — Kay, J. Evidence rejected at Trial — Appeal.] — Where the evidence of a witness had been re- jected at the hearing of an action, and there was an appeal against that decision, the witness being dangerously ill, the Court of Appeal al- lowed his evidence to be taken de bene esse before a special commissioner pendingthe appeal; the appellant undertaking to abide by any order which the court might hereafter make as to the costs of the application and the costs of the examination. Solicitor to the Treasury v. White, 55 L. J., P. 79— C. A. Action to perpetuate Testimony — lUegiti- maoy.] — A lunatic, having several children, obtained a divorce from his wife on the ground of her adultery. It was alleged that one of the children born before the divorce was illegitimate, and the committee presented a petition that pro- ceedings might be taken to perpetuate the testi- mony of the illegitimacy : — Held, that the proper course was for the court to settle some of the lunatic's property on his children, and the legitimate children, having raised the question as to the right of the child, who it was alleged was illegitimate, to participate, could then bring an action to perpetuate the testimony. Stoer, In re, 9 P. D. 120 ; 51 L. T. 141 ; 32 W. R. 1005. — C. A. Delivery of Defence, Default in. J — In an action to perpetuate testimony, the time for delivery of defence having expired, and the de- fendant not having applied for an extension of time, the plaintiff obtained, on motion, an order that the action might proceed, notwithstanding the defendant's default, and that he might be at liberty to examine the witnesses (one of whom was of advanced age and in failing health) as if the pleadings were closed. Bute (JM.arquess') v> James, 33 Ch. D. 157 ; 55 L. J., Ch. 658 ; 55 L. T. 133 ; 34 W. R. 754— V.-C. B. Form of Order.] — In an action for replacement of railway stock alleged to have been transferred from the name of the plaintiff by means of a forged transfer, an attesting witness of the execution of the transfer was dangerously ill. On motion ex parte on behalf of the plaintiff for leave to examine the witness de bene esse, and for the appointment of a special examiner : — Held, that it was a proper case to make the order, the judge directing the order to be drawn up in accordance with the form in Seton on Decrees (4th edit.), 1635, omitting the words, " And it is ordered that the plaintiff be at liberty to give such depositions in evidence at the trial of this action" : — That, at the trial of the action, before leave to use the evidence was given, it would be necessary to prove that the witness was- not capable of being examined. Barton v. North Staffordshire Railway, 56 L. T. 601 ; 35 W. R. 536— Kay, J. Appointment of Special Examiner.] — The court refused to appoint a special examiner, holding that the matter must go to the examiner in rotation. lb. It is not no w the practice of the court to appoint a special examiner to take a country examina- tion, even, for instance, in a Welsh case, where it is alleged to be necessary that the examina- tion should be taken by a, person conversant with the Welsh language. In such a case the examination will be referred in the usual way to one of the examiners of the court, who is en- titled, if necessary, to the assistance of an inter- preter. Bute (^Marquess') v. James, supra. Examination — Subpoena.] — A witness required to attend before an examiner under Ord. XXXVII. r. 20, is not bound to attend unless served with a subpoena. Stuart v. Balhis Com- pany, 53 L. J., Ch. 790 ; 50 L. T. 479 ; 32 W. E. 676— Chitty, J. Priority of 'Witnesses.] — There is no general rule as to the order of priority in which witnesses are to be examined before an ex- aminer ; but the examiner may exercise his discretion as to the most convenient order in which the examination of the witnesses may be taken. li. Adjournment — Power to Recall.] — ^After a witness has been examined before an examiner of the court and his depositions have been signed, the examiner has power to adjourn the examination, and the witness may be reoallei 761 EVIDENCE— On Affidavit. 762 and is bound to attend upon notice given to him that his attendance is required. Metropolitan {^Brtisli) Electric Light and Power Company, In re, Offor, Ex parte, 54 L. J., Ch. 253 ; 51 L. T. 816— Kay, J. Certificate not Taken up.] — ^Where an ex- aminer's certificate has not been taken up, its ■effect will not be allowed to be stated in court. ^uart V. Balkis Company, supra. IX. EVIDENCE ON ATFIDAVIT. 1. PRACTICE GENERALLY. Consul unable to Administer Oath.] — Where, by German law, a British consul is not allowed to administer an oath, the affidavit maybe sworn before a German judge. Faweus, In goods of, 9 P. D. 24:1 ; 54 L. J., P. 47 ; 33 W. E. 323 ; 48 J. P. 743— Hannen, P. Sworn before Notary in Foreign Country.] — . Before and after the Act 15 & 16 Vict. o. 86, affidavits sworn in foreign parts out of her Majesty's dominions before a notary public might be filed, and that practice continued in force ■down to the time when the Rules of the Supreme Court, 1883, came into operation : — Held, that this practice is not abrogated by Ord. XXXVIII. T. 6, and Ord. LXXII r. 2, of the Rules of 1883 ; and may be followed, at any rate in cases where the practice under the Rules of 1883 would be very inconsistent. Coohe v. Wiliy, 25 Ch. D. 769 ; 53 L. J., Ch. 592 ; 50 L. T. 152 ; 32 "W. R. 379— Chitty, J. Sworn before Clerk of Foreign Circuit Court.] — ^An affidavit was sworn before the clerk of the ■circuit court of Monroe county, in the State of Wisconsin, XJ. S., Chicago, distant about 250 miles from Monroe county, being the nearest place where a British consul or vice-consul was resident. The British vice-consul at Chicago certified that the clerk of the circuit court had authority to administer oaths. The court, on motion ex parte for leave to file the affidavit, made the order. BrittleianTt v. Smith, 50 L. T. 491— V.-C. B. Description of Deponent.] — In support of a petition for the appointment of a new trustee in the place of a trustee who had become lunatic, two affidavits were filed as to the fitness of the person proposed to be appointed. The deponent of one affidavit was described as a " gentleman," the other deponent being described as an ac- countant. Each affidavit described the proposed new trustee as a "gentleman," but also stated that he was a person of independent means : — Held, that the description of the deponent as a ■• gentleman " was insufficient, that the position in life of the deponent ought to be stated so as enable the court to judge whether his evidence was reliable, but that the other affidavit was sufficient. Horwood, In re, 55 L. T. 373-0, A. Deponent's Abode.]— By Order XXXVIII. r. 8, every affidavit shall state the description and true place of abode of the deponent ; where therefore a deponent gave an illusory address or no address at all, the court would not allow them to be used. Hyde v. Hyde, 59 L. T. 523 — Hannen, P. Omission of Title of Commissioner.] — An affidavit was sworn before a commissioner to ad- minister oaths, but in the jurat he merely signed his name, and did not add his title as commis- sioner : — Held, that notwithstanding this omis- sion, the affidavit was sufficient, Johnson, Ex parte, Chapman, In re, 26 Oh. D. 338 ; 53 L. J., Ch, 763 ; 32 W. R, 693-0. A. Striking out for Prolixity.] — Although there is no rule of court specially giving power to the court to take affidavits ofE the file for prolixity, yet the court has an inherent power to do so in order to prevent its records from being made the instruments of oppression. Hill v, Hart-Bavis, 26 Oh. D. 470 ; 53 L. J., Oh. 1012 ; 51 L. T. 279 — 0. A. Power of Court to exclude.] — The court, if it be of an opinion that such a course is necessary for the purposes of justice, has authority to ex- clude affidavit evidence altogether, and to direct that the same shall not be used, but that the witnesses shall be examined orally at the trial. Lomll V. Wallis, 53 L, J., Oh,, 494 ; 49 L.T. 593 —Kay, J. Irregularity — Illiterate Witness. ] — ^Affidavits made by an illiterate person were sworn with the usual form of jurat not containing the certifi- cate required by Ord. XXXVIII. r. 13. The managing clerk of the deponent's solicitor de- posed that he had prepared the affidavits from the deponent's personal instructions, that he carefully read them over to him before they were sworn, and that the deponent appeared perfectly to understand them. It was not, however, de- posed that the affidavits were read over in the presence of the commissioner : — Held, that there was no sufficient evidence to satisfy the court that the affidavits were read over to and ap- peared to be perfectly understood by the depo- nent within the meaning of Ord. XXXVIII. r. 13, and that the affidavits must be taken off the file. Longstaffe, In re, Blenliarn v. Longstaffe, 54 L. J,, Ch, 516 ; 52 L, T. 681— Kay, J, Eight to Use — Further Consideration.] — Where proceedings in an action had been carried on under an order made in pursuance of Ord, XV, , and there had been no trial of the action, the court, on further consideration of the action, allowed an affidavit to be read which had not been before the chief clerk, and therefore was not mentioned in the certificate, Michael, In re, Bessau v, Letein, 52 L. T, 609 — Kay, J, Attesting 'Witness not to be Found,] — In a suit for revocation of probate on the grounds of undue execution, and incapacity, where it appeared that every effort had been made to find one of the attesting witnesses, but vrithout suc- cess — the court allowed the affidavit made by him eight years before, at the time of proving the will at the district registry, to be admitted as evidence of execution and capacity, Gornall v. Mason, 12 P, D, 142 ; 56 L, J,, P. 86 ; 57 L, T. 601 ; 35 W. R. 672 ; 51 ■!, P, 663— Butt, J. Time for Filing.] — On the hearing of a sum- mons adjourned from chambers into Court, 763 EVIDENCE— 0« Affidavit. 764 affidavits filed after the time fixed by the chief clerk for the filing of evidence cannot be used before the Judge iu Court unless special leave to use the new affidavits has been given either by the Judge or the chief clerk. This rule does not apply where no time has been fixed by the chief clerk for the filing of evidence. Chifferiel, In re, Chifferiel v. Watson, 58 L. J., Ch. 137 ; 58 L. T. 877 ; 36 W. R. 806— North, J. TTsed hefore Cross-examination completed.] — Semblo, that the fact that a cross-examination on affidavit is not concluded does not prevent the court from looking at the affidavit. Lewis v. James. 54 L. T. 260— 0. A. 2. CEOSS-EXAMINATION. Power of Court to use — Cross-examination not completed.] — See preceding case. In what Cases — Summons for Administration by Infants.] — Infants were entitled under a will to legacies of considerable amount, and they were also entitled in remainder subject to the life interests of four persons to seven-elevenths of the residuary estate. An originating summons was taken out by one of the tenants for life and the infants asking for administration of the testator's estate. Affidavits were filed in support of the summons, and the witnesses were cross- examined at considerable length : — Held, that the cross-examination was most improper, and that it should not be resorted to in such a case, and a direction was given that in future cross- examinations should not be resorted to in such cases without an application to the court. Wilso7i, In !•(•, Alexander v. Caldcr, 54 L. J., Ch. 487— Pearson, J. Form of Notice requiring Production of Deponents.] — On the prosecution of an inquiry added to a decree, one party filed an affidavit by a person resident in South America, and gave notice to read it, whereupon the opposite party gave notice that he required to cross-examine the deponent, not saying when, where, or before whom :— Held, that Ord. XXXVIII. r. 28, ex- cluding an affidavit from being read, except by special leave, unless the deponent is produced for cross-examination — even supposing that Ord. XXXVIII. rr. 21, 22, make that rule applic- able- to evidence on an inquiry, and supposing that Ord. XXXVIII. r. 28, applies to a witness resident out of the jurisdiction — did not exclude the present affidavit, as the notice for cross- examination did not follow the terms of Ord. XXXVIII. r. 28 :— Held, also, that the order of the Court of Appeal admitting the affidavit as evidence, without prejudice to any application by the opposite party, within fourteen days, for the cross-examination of the deponent in any place in South America, before some proper per- son to be appointed for that purpose, was right under all the circumstances. Coneha v. Concha, 11 App. Cas. 541 ; 56 L. J., Ch. 257 ; 55 L. T. 522 ; 35 W. R. 477— H. L. (B.) Discretion of Court or Judge.] — The court or judge has a discretion in making an order under Order XXXVIIl. r. 1, for the attendance for cross-examination of a person who has made an affidavit, and is not bound to make such an order. La Trinidad v. Browne, 36 W. R. 138— North, J. Expenses of Production of Deponent.] — The provision in Rules of Court, 1875, Ord. XXXVIIl. r. 4, that the party producing deponents for cross-examination upon their affidavits shall not be entitled to demand the expenses thereof in the first instance from the party requiring such production, is confined to a cross-examination of the deponents before the court at the trial of the action, and does not apply to a cross-examina- tion on an affidavit filed after decree for the purpose of proceedings in chambers. Knight, In re. Knight v. Gardner, 25 Ch. D. 297 ; 53 L. J., Ch. 183 ; 49 L. T. 545 ; 32 W. R. 469— A The direction in Ord. XXXVIIl. r. 23, of Rules of the Supreme Court, 1883, that the party producing a deponent for cross-examina- tion shall not be entitled to demand the ex- penses thereof in the first instance from the party requiring such production, tak£n in con- junction with Ord. XXXVII. r. 21, of the same rules, which provides that evidence taken subse- quently to the hearing or trial of any cause or matter shall be taken as nearly as may be in the same manner as evidence taken at or with a view to a trial, is not confined to the cross-exami- nation of the deponent before the court at the trial of the action, but applies also to a cross- examination before the chief clerk in chambers or before an examiner. Sachhouse v. Aleooli, 28 Ch. D. 669 ; 54 L. J., Ch. 842 ; 52 L. T. 342 ; 33 W. R. 407— Chitty, J. The effect of Ord. XXXVIIl. r. 28, of the Rules of the Supreme Court, 1883, which provides that the party producing a deponent for cross-examina- tion shall not be entitled to demand the expenses thereof in the first instance from the party re- quiring such production, taken in conjunction with Ord. XXXVII. r. 22, which provides that the practice with reference to the examination, cross-examination, and re-examination of wit- nesses at a trial shall extend and be applicable to evidence taken in any cause or matter at any stage, is that the expenses of production of a witness for cross-examination upon affidavit before a trial must be borne in the first instance by the party producing such witness. Mansel v. Clanricarde, 54 L. J., Ch. 982 ; 53 L. T. 496— Kay, J. After Judgment in Administration Action.] — The plaintiff after judgment in an administra- tion action obtained an order for cross-examina- tion of defendant (the executor) upon his affidavit, in answer to inquiries directed by the judgment, denying possession of any part of the testator's estate. The defendant declined to attend before the examiner until plaintiff had paid his ex- penses. The plaintiff having subsequently served defendant with a subpoena moved that he be ordered to attend at his own expense : — Held, that it was open to the plaintiff to combine the two methods of procedure and that the defendant was bound to produce himself at his own ex- pense for cross-examination ; and further, that regarding the defendant as a deponent whose attendance was required for cross-examination, the penalty imposed by Ord. XXXVIIl. r. 28, of having his affidavit rejected, did not relieve 765 EXECUTION. 766 him from the obligation to attend at hia own expense. Baker, In re, Cimtiell v, Salter, 29 Gh. D. 711 ; 54 L. J., Ch. 844 ; 52 L. T. 421— Chitty, J. EXCISE. See REVENUE. EXECUTION. 1. Form of Writ, 766. 2. Fieri Facias, 766. 3. Elegit, 767. 4. Sequestration, 767. 5. Equitaile Eseecution — Reeeiver, 769. 6. Charging Order — Stocks and Shares, 772. 7. Discovery in Aid of, 773. 8. Rights of Execution Creditor, 774. 9. Attachment of Debts — See Attachment. 10. Validity and Effect as against Trustee in Bankruptcy — See Bankeuptcy, XL, 1. 11. Scire facias — See Company, X. 12. Sheriff's Duty on — See Sheeipp. 13. Costs of Eaiecution. a. In General — See Sheeipp. h. In County Court — See ante, col. 546. 14. Against Billing Stock of Railway Company — See Railway. 15. Staying Execution pending Appeal ^- See 1. Form op Wbit. In General.] — The true interpretation of the words, Ord. XLII. r. 14, of the Rules of 1883, " The forms used in Appendix H. shall be followed, with such variations as circumstances may require " — is, that the forms in Appendix H. can only be varied for the purpose of making them to be in accordance with the terms of the judgment or order. Boswell v. Coaks, 57 L. J., Ch. 101 ; 57 L. T. 742 ; 36 W. R. 65— C. A. 2. Fieri Facias. Whether Goods those of Apparent Owner or Intestate — Basiness carried on,] — After the death in May, 1880, of A., a shopkeeper, his daughter B. carried on the business. Judgment was obtained against B. personally, and a fi. fa. was issued thereon and delivered to the sheriff in March, 1881. At this time B. was in possession of shop goods of considerable value, some of which had been the property of A. in his lifetime, and the rest were purchased out of the proceeds of sale of other goods of A. In an action for a false return against the sheriff, who had returned nulla bona, he claimed to have a verdict entered for him on the ground that the goods were not the gopds of B. No evidence was given of any testamentary disposition by A. : — Held, that in the absence of any proof that the trading was carried on by B. as personal representative of A., the onus of which lay on the sheriff, the good* purchased by her after A.'s death could not be held to be the assets of A. Kelly v. Browne, 12 L. R., Ir. 348— Ex. D. Affirmed in C. A. On Order for Taxation of Bill of Costs.]— <9pff Solicitor (Bill op Costs). What can be seized — Against Partnership.] — A sheriff cannot sell u partner's interest in the goodwill or book debts or anything else which he cannot seize. Selmore v. Smith, 35 Ch. D. 436 ; 56 L. T. 535 ; 36 W. R. 3— C. A. Pawnbroker's Basiness — Unredeemed Pledges — Property in Articles Pawned.] — A receiver was appointed in an action in the Queen's Bench Division, to receive the profits and other moneys receivable from a pawn- broker's business carried on by the defendant. Subsequently to the appointment of the receiver, but before he perfected his security, a writ of fi. fa. was issued to the sheriff to recover a sum of money ordered to be paid by the defendant in au action in the Chancery Division, in pursuance whereof the sheriff took possession of certain goods and chattels in the possession of the defen- dant, including various articles pawned with her and not yet redeemed. The receiver perfected his security, and claimed the redeemable pledges in the defendant's house : — Held, that the defen- dant, as pawnbroker, had a qualified property in the articles pawned with her and not yet redeemed, which was not intercepted by the appointment of a receiver ; and tliat therefore the sheriff was entitled to hold such articles on behalf of the execution creditor, and to receive money paid to redeem the same. RoUason, In re, Rollason v. Rollaso-n, 34 Ch. D. 495 ; 56 L. J., Ch. 768 ; 56 L. T. 303 ; 35 W. R. 607— North, J. Sale of Interest in Licensed Premises — Assignment of Licence.] — Under a writ of fi. fa. against C, certain chattels and his interest in licensed premises were seized, advertised for sale, and sold on the 31st January, 1885, by the sheriff. No reference to the licence was made either in the advertisements, conditions of sale, or deed of assignment, which was dated the 10th February, 1885, except that in the latter the premises were described as " licensed," as occupied by G. as a licensed publican, and the deed did not purport to assign the licence. The sheriff was not pos- sessed of the licence, but it was subsequently indorsed and delivered by G. to the purchaser. On the 4th April, 1885, G. was adjudicated a bankrupt. The purchaser, however, obtained an ad interim transfer of the licence on the 14th April, and an absolute transfer at the October Sessions. In August the hearing of a charge and discharge, raising a question as to the property in the licence, was adjourned by consent to November, on the terms that the position of the parties should be considered at the hearing as if unaltered : — Held, that the licence did not pass under the sheriff's assignment ; that the subse- quent indorsement, delivery, and transfer of it by G. to the purchaser were void as against the assignees in bankruptcy of G., and that the licence formed part of the estate and effects of G. in the bankruptcy matter ; but having regard to the proceedings at the licensing sessions, the court declined, for the time being, to make any 767 EXECUTION. 768 •order for the transfer of the licence to the assignee in hankruptcy, or to award damages against the purchaser for withholding the licence. Gilmer, In re, 17 L. R., Ir. 1— Bk. Sale of Goods by Private Contract— Appli- cation Ex parte.] — Under s. 145 of the Bank- ruptcy Act, 1883, the court has a discretion to ■order goods taken in execution by the sherifE to be sold by private contract instead of by public .auction, notwithstanding that the application for leave to sell by private contract is made by the execution creditor ex parte, and in the absence of all the other creditors of the execution debtor. Hunt V. FensTiam, 12 Q. B. D. 162 ; 32 W. E. 316 — D. 3. Elegit. Seizure but not Delivery of the Goods.] — By the Bankruptcy Act, 1883, s. 146, "the sherifE shall not imder a writ of eligit deliver the goods of a debtor, nor shall a writ of elegit extend to goods," and by s. 169, which repeals, amongst other enactments, so much of 13 Edw. 1, c. 18, .as relates to the chattels of the debtor, save only ■his oxen and beasts of the plough, it is enacted that "the repeal efEected by this act shall not affect anything done before the commencement ■of this act under any enactment repealed by this act ; nor any right or privilege acquired or duty imposed, or liability or disqualification incurred under any enactment so repealed." Some days before the 1st of January, 1884, when the Bank- ruptcy Act, 1883, came into operation, the sherifE entered into possession and seized goods of the defendant, under a writ of elejit issued under ■statute 13 Edw. 1, c. 18, at the suit of the plain- tiff, a judgment creditor of the defendant, but no delivery of such goods had been made to the plaintiff before the 1st of January, 1884 : — Held, that the Bankruptcy Act, 1883, had not deprived the plaintiff of his right to the delivery of such goods. Sovgh v. Windm, 12 Q. B. D. 224 ; 53 L. J., Q. B. 165 ; 50 L. T. 312 ; 32 W. K. 452 ; 1 M. B. R. 1 — C. A. See also ante, col. 154. Extends to Leaseholds.] — Notwithstanding the provisions of s. 146 of the Bankruptcy Act, 1883, a, writ of elegit still extends to leaseholds. Richardson v. Weib, 1 M. B. R. 40— D. See also Bankeuptcy, XL, 1. 4. Sbquesteation. Wilful Disobedience of Corporation to Order — How Made and on what Materials.] — The •court had granted an injunction restraining the defendants from polluting with sewage a pool belonging to the plaintiff, but suspended the order for three months to allow them to comply with it. They had moved the court for a further extension of time, but had been refused. As they had taken no steps to obey the order, the plaintiff soon after the expiration of the three months served them with notice of motion under Ord. XLII. 1'. 31, for leave to issue sequestra- tion against the property of the corporation. Before, however, this notice was served they remedied the nuisance, so the motion now came on merely as a question of costs. The defendants submitted the following technical objections under the Rules of the Supreme Court, 1883 : (1) No memorandum had. been indorsed upon the copy of the judgment served on them, as required by Ord. XLI. r. 5. (2) No copies of the affidavits intended to be used had been served with the notice of motion, as required by Ord. LII. 1'. i. (3) There was no case for sequestration at all, but if there were the plaintiff was entitled to, and ought to have issued his writ under Ord. XLIII. r. 6, without moving for leave. (4) Application for leave, if neces- sary, ought to have been by summons in cham- bers, in accordance with Snow v. Bolton (17 Ch. D. 434) ': — Held, that the defendants had been guilty of wilful disobedience to the order of the court ; and (1) that Ord. XLI. r. 5, had no applica- tion to a prohibitive order like the present one ; (2) that copies of affidavits need only be served with the notice of motion in cases where the liberty of the s abject was involved, as in attach- ment ; (3) that Ord. XLIII. i. 6, applied to something to be done in a limited time, and not to something which had been ordered (as in the present case) not to be done at all ; and (4) that, under the circumstances of the case, the plaintiff was right to move the court in the first instance instead of proceeding by summons in chambers. Selous v. Croydon Rural Sanitary Authority, 53 L. T. 209 -Chitty, J. Personal Service of Order.] — A husband ob- tained a decree for restitution of conjugal rights, which was not complied with, and the court afterwards made an order giving the petitioner the custody of the only child of the marriage. A copy of the order for custody was left at the house where the respondent was residing, but the respondent had not given up the child to the petitioner. The court, being satisfied that the order as to the custody of the child had come to the knowledge of the respondent, ordered a writ of sequestration to issue against her for non- compliance ■with the order, without a, previous writ of attachment, and ordered the respondent to pay the costs of the motion. Allen v. Allen, 10 P. D. 187 ; 54 L. J., P. 77 ; 33 W. R. 826— Hannen, P. Form of Writ.] — On the application of a husband, who had obtained a decree nisi for divorce against his wife, an order was made that the wife should deliver up into the custody of the husband the children of the marriage. The wife knew of the order, but evaded service of it, and disobeyed it. On the application of the husband an order was then made declaring the wife contumacious and in contempt, and direct- ing that a writ of sequestration should issue against the estate and effects of the wife : — Held, first, that as the wife knew of the order for delivery up of the children, and evaded ser- vice of it, personal service of the order upon her was not necessary to give the court jurisdiction to issue the writ of sequestration ; secondly, that the general form of the writ of sequestration against " the estate and effects " of the wife, without any express limitation therein to sepa- rate property of the wife not subject to a re- straint on anticipation, was right, but that the writ would only operate on her separate property which was not so subject. Hyde v. Hyde, 13 P. D. 166 ; 57 L. J., P. 89 ; 59 L. T. 529 ; 36 W. E. 708— C. A. 769 EXECUTION. 770 Against Benefice of Dettor.] — See Ecclesias- tical Law, VIII. When Eeceiver appointed in Lieu of.] — See Wliiteley, In re, infra. 5. Equitable Execution — Rbceivee. Service of Summons out of Jurisdiction.] — The plaintiff having obtained judgment against the defendant, a foreigner resident out of the jurisdiction, a summons was issued by leave of a judge at chambers, calling on the defendant to show cause why a receiver should not be ap- pointed. On an application for leave to serve this summons on the defendant out of the juris- diction : — Held, that there was no jurisdiction to grant such leave. Weldon v. Gomnod, 15 Q. B. D. 622— D. Evidence of Property.] — Where a plaintifE obtained judgment and issued execution, and the sheriff returned nulla bona, the court will not appoint a receiver on the ground that since the return, the defendant has been found to be possessed of a patent the value of which did not appear from the evidence before the court. Smith V. Carter, 52 J. P. 615— D. Form of Order — Security.] — Where a judgment creditor, in an action for equitable execution, obtained the appointment of a receiver for the purpose of creating a charge upon the debtor's property, subject to prior incumbrances, but not for the purpose of entering into possession or receiving the rents and profits, the receiver was not required to give security, the plaintiff and the receiver undertaking not to act without the leave of the court. Hewett v. Murray, 54 L. J., Ch. 572; 52 L. T. 380— V.-C. B. See also Me Garry ■70 ; 34 W. R. 498— North, J. Contract induced by — Bescissiou of Contract — Eestitutio in Integrum. ]^ — The respondent was induced by misrepresentations made without fraud by the appellants to become a partner in a business which either belonged to them or in which they were partners and which was in fact insolvent. The business having afterwards, owing to its own inherent vice, entirely failed with large liabilities : — Held, that the respondent was entitled to rescission of the contract and repay- ment of his capital, though the business which he restored to the appellants was worse than worthless, and that the contract being rescinded the appellants could not recover against him for money lent and goods sold by them to the partnership. Adams v. Neiobigging, 13 App. Gas. 308; 57 L. J., Ch. 1066; 59 L. T. 267,; 37 W. E. 97— H. L. (E.). Bepudiation or Affirmation of Contract.] — A solicitor took money of his client's, and pretended to have invested it upon four mortgages. After his death it was discovered that three of these mortgages were absolutely valueless, and the client took no steps as regards them. He brought an action to enforce the other, which resulted in a compromise out of which he obtained part of the money due : — Held, that as regards this last one he had affirmed the contract, and could not now repudiate the mortgage, but as regards the other three he could. Murray, In re, JDicltson V. Murray, 57 L. T. 223— Stirling, J. Effect of, when Interest of Third Parties has intervened.]— B. for the purpose of enabling a company to have a fictitious credit in case of inquiries at their bankers, placed money to their credit, which they were to hold in trust for him. Some of the money having been drawn out with B.'s consent, and the company having been ordered to be wound up while a balance re- mained : — Held, that B. could not claim to have the balance paid to him. Great Berlin Steam- boat Company, In re, 26 Ch. D. 616 ; 54 L. J., Ch. 68 ; 51 L. T. 445— C. A. Duty of Inquiry — Simplex Commendatio.] — The plaintiffs advertised for sale by auction an hotel, stated in the particulars to be held by a •" most desirable tenant." The defendants sent their secretary down to inspect the property and report thereon. The secretary reported very unfavourably, stating that the tenant could scarcely pay the rent (400Z.), rates and taxes. The defendants, relying on the statements in the particulars, authorized the secretary to attend the sale and to bid up to 5,000Z. The property was bought in at the sale, and the secretary purchased it by private contract for 4,700?. It appeared subsequently that the quarter's rent previously to the sale had not been paid ; the previous quarter had been paid by instalments, and six weeks after the sale the tenant filed his petition. It appeared, however, that the hotel business was as good during the last year as previously, and that the month of the tenant's failure was the best he had had. The plaintiflEs brought an action for specific perfoimance, relying (in answer to the defence and counter- claim for rescission on the ground of misrepre- sentation) on the fact that the defendants had made their own inquiries : — Held, that the state- ment that the property was held by a " most desirable tenant " was not a mere expression of opinion, but contained an implied assertion that the vendors knew of no facts leading to the con- clusion that he was not ; that the circumstances relating to the payment of rent showed that he was not, and that there was a misrepresentation. Smith V. Land and House Property Corporation, 28 Ch. D. 7 ; 51 L. T. 718 : 49 J. P. 182— C. A. Effect of, in Farticnlars, etc., on Sale of tand.]— &;e Vendor and Puechaseb. "Legal Fraud."] — The expression fraud " considered and explained. Peek v. Berry, 37 Ch. D. 541 ; 57 L. J., Ch. 347 ; 59 L. T. 78 ; 36 W. E. 899— C. A. See S. C. in H. L., 33 S. J. 589. Carriage Settlement — Fraudbefore Karriage.] • — In an action to set aside a marriage settlement, the plaintiff alleged, as the ground of his action, that previous to the execution of the settlement made upon the marriage between himself and I. S., the latter stated to him that her first hus- band had been divorced from her, at her suit, by reason of his cruelty and adultery, and that she had not herself been guilty of adultery ; that such statements were made to induce him to execute the settlementand contract the marriage , that in reliance on the representations, he exe- cuted the settlement and married I. S. ; that he subsequently discovered that the representations were false to the knowledge of I. S., and that she herself had been divorced from her husband at his suit and by reason of her adultery : — Held, on motion by the defendant, that the plaintiff's statement of claim must be struck out under Ord. XXV. 1. 4 as disclosing no reasonable ground of action. Johnston v. Johnston, 53 L. J., Ch. 1014 ; 51 L. T. 537 ; 32 W. E. 1016— Pearson, J. Affirmed 52 L. T. 76 ; 33 W. E. 239 — C. A. Valuer — mortgage — Action by Mortgagee for Misrepresentation.] — An intending mort- gagor, at the request of the solicitors of an intending mortgagee, applied to a firm of valuers for a valuation of the property proposed to be mortgaged. A valuation at the sum of 3,000/. was sent in by the valuers direct to the mort- gagee's solicitors, and the mortgage was subse- quently carried out. Default having been made in payment by the mortgagor, and a loss having resulted to the mortgagee, he commenced an action against the valuers for damages for the loss sustained through their negligence, misre- presentation, and breach of duty. The court being satisfied on the evidence that the defen- dants knew at the time the valuation was made that it was for the purpose of an advance, and that the valuation as made was in fact no valu- ation at all : — Held, that, under the circum- stances, the defendants were liable on two grounds : (1), that they (independently of con- tract) owed a duty to the plaintiff which they had failed to discharge ; (2), that they had made reckless statements on which the plaintiff had acted. Oeorge v. Skimngton (5 L. E., Ex. 1), and Heaven v. Pender (11 Q. B. D. 503), followed; Peeh V. Berry (37 Ch. D. 541) discussed. Cam S25 FEAUD AND MISREPRESENTATION. 826 V. WUlsm, 39 Ch. D. 39 ; 57 L. J., Ch. 1034 ; 37 W. R. 23— Chitty, J. Concealment of Fraud — Statute of Limita- tions.] — See Limitation, Statutes of. 2. Fraudulent Conveyances. a. TJnder 13 Eliz. c. 5. Intent to "delay, hinder, or defraud Creditors."] — A master mariner was married at Hong Kong on May 31, 1881. In the following August, an action for breach of promise of marriage was commenced against him, and the writ served upon him at Hong Kong on October 8. At the time of his marriage he was entitled to a legacy of 5001., which had become vested in possession on the death of his mother (who had a life interest in it) on May 11, 1 881. On October 17, 1881, being still at Hong Kong, he made a voluntary settlement of the legacy upon trast during the joint lives of himself and his wife for hw separate use, remainder for the survivor for life, remainder for the children of the marriage, remainder, in default of children, for himself absolutely. Judgment was obtained against him in the action on July 20, 1882, for 500i., and in November, 1884, he was adjudicated ban^:rupt. It appeared that when he executed the settlement he was able to pay his debts vfithout the aid of the property comprised in the settlement, aud that he did not know that he was entitled to the legacy until a few days before he executed the settlement, and he stated that in executing it he was not influenced by the action which had been commenced against him : — Held, that there was not sufficient evi- dence to warrant a judge or jury in finding that tiie settlement was intended to " delay, hinder, or dfifraud creditors" within 13 Eliz. c. 5. Freeman v. Pope (5 L. E., Ch. 538) con- sidered. Mereer, Eao parte. Wise, In re, 17 Q. B. D. 290 ; 55 L. J., Q. B. 558 ; 54 L. T. 720— C. A. S., a retail trader, being in difficulties, by deeds, dated July, 1882, assigned to C, wholesale manufacturers, to whom he was indebted, all his stock-in-trade, effects, &c., together with the premises on which the business was carried on — such assignment comprising substantially the whole of his property ; and by an agreement of thj? same date S. agreed lo carry on tixe business in his own name as servant of C. and he continued to carry it on as the apparent owner, although really acting under the directions of C, until March, 1883, when he was adjudicated a bankrupt. The assignment was expressed to be wade in consideration of a debt of S,27lt. then due from S. to C, which C. thereby released. There was a contemporaneous verbal agreement between S. and C. that 0. should undertake the payment of S.'s other oreditprs, but whether all or only his trade creditors did not appear. At the date of the assignment the only debt due from S. to C. was 1,370Z., bat all S.'s debts, so far as they could be ascertained, amounted to 3,271Z. C, either immediately before or after the execution of the assignment, paid out some executions for S., and also some arrears of rent due from him to his landlord, and subsequently made advances and supplied goods for the pur- poses of the business. C., however, notwithstand- ing the verbal agreement, did not pay or give any security to a creditor of S. who was pressing him, but induced S. himself to give a promissory note in his own name for his debt : — Held, that the deed was clearly void under the statute of Elizabeth. Chaplin, Ex parte, Sinelair, In re, 26 Oh. D. 319 ; 53 L. J., Ch. 732 ; 51 L. J. 345 — C. A. See also Godfrey v. Poole, post, col. 828. Intention to defeat particular Creditor.] — It is a fraud, within 10 Chas. 1 (Ir.), sess. 2, c. 3, s. 10, for a debtor without consideration, and with intent to defraud or delay a particular creditor, to part with any portion of his property. Wood V. Dixie (7 Q. B. 892) explained and distinguished. [10 Chas. 1 (Ir.) sess. 2, c. 3, s. 10 is equivalent to IB Eliz. c. 5.] Moroney, In re, 21 L. R., Ir. 27— C. A. Ante-nuptial Settlement — Void as against Creditors.] — Although a woman may know that a man is in embarrassed circumstances and that her marrying him at the lime may be of service to him and preserve his property, if nevertheless her object in marrying him is not solely for the purpose of preserving his property, but for the ordinary reasons which lead men and women to take that position with regard to each other, an ante-nuptial settlement executed by the husband will not be void. But where the marriage is not an honest marriage and is entered into solely for the purpose of attempting to make a settle- ment valid which otherwise would be void, and where, but for a desire to defraud the creditors no marriage between the two parties would have taken place, the ante-nuptial settlement will be set aside. Thus where a man executed an ante- nuptial settlement and married a woman with whom he had had an immoral intimacy, and the evidence showed that such marriage was entered into solely with intent to defraud his creditors, the wife beijig implicated in the transaction : — Held, that the settlement was fraudulent and void as against the creditors. Cooper, Ex parte, Pennington, In re, 59 L. T. 774 ; 5 M. B. R. 216 —Cave, J. Affirmed 5 M. B. E. 268— C. A. Both Parties to Fraud.] — To avoid an ante-nuptial marriage settlement as a fraud upon creditors it must be shown that both hus- band and wife were parties to the fraud. Parnell V. Stedman, 1 C. & E. 153 — Cave, J. Good Consideration— Wife giving up Squity to a Settlement.] — H. was man-ied to his wife in 1864, aad she su,bsequently became entitled to certain moneys under the wills of her father and grandfather. These moneys she lent to her husband for the purposes of his business, upon the terms that he would execute a settlement of the moneys upon her, which was done. Upon the bankruptcy of H. a proof was tendered upon the settlement and rejected on the ground that this deed was volunt^rry within the terms of the statute 13 Eliz. c. 5 :— Held, that the settlement was not covinous or fraudulent within the 13 Eliz. c. 5, and th^,t there had been a good con- sideration by reason of the fact that the wife had waived her equity to a settlement. Semble, that the transaction was upheld on the ground of bona fides, and that, if the court had found that the intention of the parties had been that the settlement should make the husband abso- «27 FEAUD AND MISREPRESENTATION. 828 lute owner, and at the same time secure the moneys to the wife, it would have declared the settlement void as a fraud on the bankruptcy law. Home, In re, Uorne, Mae parte, 64 L. T. 301— Cave, J. Action by Creditor — Debt under 50Z.] — A trader insured his stock-in-trade and other effects. These were destroyed by fire. He assigned the policies to trustees on trust, to pay and divide the moneys raised thereunder among all his ■creditors rateably, and to pay the balance (if any) to himself : — Held, that the assignment was not void under 13 Bliz. c. 5, at the suit of a creditor whose debt -was under 50Z. Green v. Brand, 1 C. & E. 410— Lopes, J. laches. Effect of.] — A specialty creditor brought an action to set aside a conveyance as fraudulent under 13 Eliz. c. 5, nearly ten years after the death of the grantor. The plaintiff had been aware of the facts during the whole of that period, and gave no satisfactory reason for Vis delay : — Held, that as the plaintiff was •coming to enforce a legal right, his mere delay to take proceedings was no defence, a6 it had not continued long enough to bar his legal right, the case standing on a different footing from a suit to set aside on equitable grounds a. deed which was valid at law. Maddever, In re, Three Towns Sanldng Coonpany v. Maddever, 27 Ch. D. 523 ; 53 L. .J., Ch. 998 ;' 52 L. T. 35 ; 33 W. E. 586— C. A. b. tTnder 27 Eliz. o. 4. Post-Nuptial Settlement — Leaseholds. J ^ A ■corporation, in consideration of a fine paid, granted a lease of a house for forty years from Michaelmas, 1856, at a yearly rent of 5s. 6d., and ■subject to covenants for payment of rent, rates, and taxes, and to repair, maintain, and yield up the premises. The lease was assigned to L., who, in 1865, in consideration of natural love and affection, assigned the same, together with other property, to trustees for his wife for her separate use. Notwithstanding this settlement, L. re- mained in possession of the leasehold premises, and in 1870 he surrendered the lease to the •corporation, and, in consideration of a fine paid, procured a new lease to be granted to him in his own name. He afterwards died : — Held, that in taking the new lease L. acted for the benefit of his wife and as agent for her and the trustees •of the settlement, and that, although there was no written declaration of trust of the new lease, ■such lease was " by operation of law " subject to the trusts of the settlement declared in respect of the old lease. iMlliam, In re, Srinton v. Lulham., 53 L. T. 9 ; 33 W. B. 788— C. A. Affirm- ing 53 L. J., Ch. 928— Kay, J. Quaere, whether the surrender of the old lease was a " conveyance " within s. 1 of 27 Eliz. c. 4, Yhioh would prevail over |the previous settle- ment, assuming such settlement to be a volun- tary conveyance within the same statute. lb. A married woman, having become entitled under a will to freehold and leasehold property for her sole and separate use, joined her husband •in making a settlement, whereby the husband and wife conveyed the freeholds, and the hus- band alone demised the leaseholds, subject to the annual payment of a shilling, if demanded, to trustees, upon trust for the wife for her separate use for life, remainder to the husband for life, remainder for the children (if any), with ulti- mate remainder to the wife absolutely. Two years afterwards the husband and wdfe (there being no children of the marriage) made a mort- gage of the property : — Held, that the convey- ance by the husband, though binding on the estate by the curtesy which he would have had in his wife's freeholds if there had been issue, in the absence of any conveyance by her, was not sufficient to raise a consideration moving from the husband ; and that the settlement was volun- tary and void under the statute as against the mortgagee. Shurmur v. Sedgwick, Croufield v. Shurmur, 24 Ch. D. 597 ; 53 L. J., Ch. 87 ; 49 L. T. 156 ; 31 W. E. 884— V.-C. B. Fost-Nuptial Settlement of Lands — Trusts for Children of Marriage — Mortgage.] — By a post- nuptial settlement, lands, of which the wife, before the marriage, had been seised in fee, were settled, subject to successive life estates for husband and wife, upon the children of the marriage, reserving to the husband and wife power of revocation, and power to charge the lands with l,000i. The husband and wife executed a, subsequent settlement, in conveying the lands in trust for the wife for her separate use during their joint lives, and, subject thereto, and to an annuity for the survivor, in trust for the children of the marriage. Afterwards both husband and wife purported to mortgage the lands in fee. There were children of the mar- riage who, after the death of their parents, the mortgagors, contended that the mortgage only affected the life estate limited to their mother by the second settlement : — Held, that the settle- ments were deeds for value, so that the mortgage could not prevail against the estates in remainder of the children of the marriage ; also that the second settlement, operating as a revocation of the first, extinguished the general power to charge 1,000Z. thereby reserved. Sell's Estate, In re, 11 L. E., Ir. 512 — Land Judges. Voluntary Conveyance irrevocable — Subse- quent Purchaser for Value.] — Where a debtor conveyed all his real estate upon trust to sell and pay off his debts, and as to any ultimate surplus to pay the same to trustees to be held by them in trust for the separate use of his wife for life, and after her decease in trust for their children in equal shares as tenants in common : — Held, in a suit by a subsequent pur- chaser for value (at a sale in execution) of the grantor's interest in some lands comprised in the conveyance : (1) That the deed of convey- ance was not revocable, there being an ultimate trust for the benefit of wife and children ; (2) That it was not void as intended to delay or defeat creditors ; (3) That, not being fraudulent in fact, it was not fraudulent in law and void against creditors under 13 Eliz. c. 5, no inten- tion to delay or defeat creditor's being shown ; (4) That it was not void under 27 Bliz. c. 4, as against a purchaser for value under the New South Wales District Courts Act, 1858, ss. 78 and 79. The subsequent sale for value not being by the voluntary grantor, no presumption arose that the prior grant was fraudulent. Godfrey v. Poole, 13 App. Cas. 497 ; 57 L. J., P. C. 78 ; 58 L. T. 685 ; 37 W. E. 357— P. C. Settlement by Widower — Limitation to first 829 FRIENDLY SOCIETY. 830 Wife's Children— Subsectuent Mortgage.]— The principle that the children of a widow by a former maiTiage taking under a settlement made on her second marriage are not to be treated as volunteers, does not extend to the case of the children of a widower. Cameron and Wells, In re, 37 Ch. D. 32 ; 5T L. J., Ch. 69 ; 57 L. T. 645 ; 36 W. E. 5— Kay, J. By a settlement made on the second marriage of a widower, land belonging to him was con- veyed in trust for his children by a first marriage absolutely, and personalty belonging to the wife was settled on her absolutely. The liusband afterwards mortgaged the land : — Held, that the settlement was voluntary as regards the children of the husband, and that by 27 Eliz. c. 4, the limitation in their favour was void as against the mortgagee. Ih. Consideration — Bargain between the Parties.] — In an action for specific performance of an agreement to sell certain freehold property, a •question arose as to whether a post-nuptial settlement was void under 27 Eliz. c. 4, as being a voluntary settlement. Previously to the settlement the property had been settled on the wife for Uf e, with remainder to the husband in fee, and the wife was absolutely entitled to a one-seventh share of certain other property. The settlement contained a recital in the follow- ing words : " Whereas the said J. D. and E. D. are desirous that the hereinbefore-recited deed- poU should be altered, and that the property thereby settled should be re-settled as herein- after appearing, and also that the said one- seventh share of the said hereditaments at Whitechapel, so as aforesaid vested in the said E. D., should be included in the new settlement intended to be hereby made," and the wife purported to revoke the deed-poll mentioned, and to join with the husband in re-settling the property upon trusts, giving the husband a life- interest in the whole after her decease, and subject thereto upon trust for third parties :— Held, that there was clear evidence of a bargain between the parties, and that, as both husband and wife gave up something in order to make a re-settlement, the settlement was not voluntary within the statute. Sclireiber v. Dinltel, 54 L. T. SIX— C. A. Affirming 54 L. J., Ch. 241— North, J. FRAUDS, STATUTE OP. See CONTRACT- SALE. FREIGHT. See SHIPPING. FRIENDLY SOCIETY. What is.]— A society is a friendly society under the Friendly Societies Act, 1875, s. 8, although it may not include in its objects all the objects there stated, provided its objects are substantially the same as those in the act. Knowles v. Boutli, 32 W. K. 432— D. Registration — Companies Act, 1862, s, 4. J A society which has been registered under s. 8, sub-s. 5, of the Friendly Societies Act, 1875, pursuant to the special authority of the Treasury, is excepted from the provisions of s. 4 of the Companies Act, 1862. Peat v. Fowlei; 55 L. J., Q. B. 271 ; 34 W. R. 366— D. Whether a Charity.] — See Pease v. Pattinson, ante, col. 308. Jurisdiction of County Court — ^Amalgamation — Dispute as to Provision.] — The committee of a friendly society having agreed for the amalgamation of the society with another com- pany, summoned a general meeting in order to pass a special resolution for carrying the amal- gamation into effect. Some of the members, who were dissatisfied with the provision pro- posed to be made for the satisfaction of their claims, filed a plaint in the county court to restrain the society from carrying into effect the amalgamation, and obtained a receiver of the assets of the society, although the resolution for amalgamation had not then been passed. The public officer of the society applied for a writ of prohibition to restrain the proceedings in the county court: — Held, that the county court had no jurisdiction to interfere with the action of the society until the special resolution had been passed and confirmed, and a writ of prohibition was ordered to issue. Junes v. Slee, 32 Ch. D. 585 ; 55 L. J., Ch. 908 ; 55 L. T. 129 ; 34 W. R. 692 ; 51 J. P. 83— C. A. Dispute between Society and member — Appeal from Branch to Society.] — Sj the Friendly Societies Act, 1875 (38 & 39 Vict, c. 60), s. 22, disputes between members of a registered friendly society and the society are to be decided in manner directed by the rules of the society. By sub-s. (d), where no decision is made on a dispute within forty days after application to a society for a reference under its rules, the member or person aggrieved may apply to the county court, which may hear and determine the matter in dispute. A member of a branch of a friendly society, having been excluded therefrom by the branch committee, appealed, under the rules of the branch, to the general committee of the society, who failed to decide the dispute within forty . days after application : — Held, that the appeal was a " reference " within the meaning of the sub- section, and that a county court had juris- diction to hear and determine the matter in dis- pute. Reg. V. Cattley, or Reg. v. Northampton County Cmrt Judge, 19 Q. B. D. 491 ; 57 L. T. 108 ; 35 W. R. 717 j 52 J. P. 38— D. Eight of Appeal— Eules.]— In the case of an unregistered society under s. 30, sub-s. 10 of the Act of 1875 (explained by 42 Vict. c. 9), 831 GAME. 832 the right of appeal to a county court or court of summary jurisdiction overrides any rules of the society to the contrary. Knowles v. Booth, 32 W. K. 432— D. "Application to County Court."] — By 6. 22 of the Friendly Societies Act, 1875, dis- putes between members of a friendly society and the society or its officers are to be decided in manner directed by the rules of the society, and by sub-s. (jT). " where the rules contain no direction as to disputes, or where no decision is made on a dispute within forty days after application to the society for a reference under its rules, the member or person aggrieved may apply either to the county court, or to a couit of summary jurisdiction, which may hear an 1 determine the matter in dispute " : — Held, that the application to the county court contemplated by sub-s. ((Z) must be taken to be an application in the form of an action commenced in the county court, and not a reference to the county court judge sitting as an arbitrator, and that there was an appeal from the decision upon such application to the High Court. WilHnson V. Jagger, 20 Q. B. D. 423 ; 57 L. J., Q. B. 254 ; 58 L. T. 487 ; .36 W. R. 169 ; 52 J. P. 533— D. [See Sohnfield v. Vawsc, 36 W. R. 170, n.— C. A.] Certiorari.] — The provisions in the Friendly Societies Act, 1875 (ss. 22 (d') and 30, sub-s. 10), for the reference of all disputes between the society and its members to the county court, are permissive only, and not peremptory ; and therefore there is, in a proper case, jurisdiction to remove to the High Court by certiorari proceedings in an action com- menced against a friendly society by one of its members. Royal Liver friendlii Society, In re, 35 Oh. D. 332 ; 56 L. J., Ch. 821"; 56 L. T. 817 ; 36 W. K. 7— Chitty, J. Eules— Payment during Sickness — Old Age — Natural Decay.] — The respondent, over 80 years of age, belonged to a friendly society, one of the rules of which provided that every member, after paying a certain amount of contributions, falling sick, lame, or blind, or otherwise disabled from work, should be entitled to receive a certain weekly amount from the funds of the society for sixteen weeks, if his illness coutiimed so long, and halt pay for the remainder ; and another provided that where a member falls sick, lame, or blind, he is to give notice to the stewards, with a certificate from the surgeon of the society stating the cause of his indisposition. The surgeon of the society certified to the app:;llants (stewards of the society) that the respondent " continued unable to work by reason of natural decay." The respondent drew sick pay for some weeks ; then the appellants re- fused to allow him any more, holding that the certificate did not entitle him to receive it : — Held, that incapacity to work arising from natural decay, as the result of old age, did not entitle the respondent to sick pay under the society's rules. Dunliley v. Harrison, 56 L. T. 660 ; 51 J. P. 788— D. Death of Member intestate — Payment of Death Allowance — Bight of Administrator to Eeoover.J — The deceased, a member of au un- registered friendly society, had, upon making his ipplieation for admission to the society, signed a declaration agreeing to be bound by the rules of the society, and authorizing the deduction from his wages of the sum specified in the rules for securing to himself, or to his representatives in case of his death, the benefits of the society. The rule relating to the payment of death allowances empowered and authorized the committee to pay the allowance to such person or persons as in their discretion they might think fit ; and it further provided that the allowance .should be paid to certain specified relatives in such proportions as the committee should determine, unless otherwise bequeathed by will, when it was to be paid to the person to whom it had been bequeathed ; that, where there were no surviving relatives and no special bequest, only the funeral expenses should be defrayed by the society, and that where the allowance had been once paid neither the committee nor the society should be liable to any further claim in respect of it. Upon the death of the member intestate the society paid the amount of the death allowance to the defen- dant, his sister. Th? plaintiff, as administrator of the deceased, having brought an action against the defendant to recover the money so paid to her : — Held, that the rule constituted the contract between the member and the society as to the p3,yment of the money ; that the death allowance was not the property of the member during his life, and in the absence of a. bequest by will was not assets for the payment of his debts, and that therefore the plaintiff could not recover. Asliiy v. Costin, 21 Q. B. D. 401 ; 57 L. J., Q. B. 491 ; 59 L. T. 224 ; 37 W. B. 14C ; 53 J. P. 69— D. GAMBLING. See GAMING. GAME. Dealer's Licence — Breeding Pheasants.] — M., a pheasant-breeder for many years, set pheasants' eggs under barn-door hens in coops, cutting one wing of each bird to prevent escape and facilitate identification. He sold two cock pheasants on 5th February for U. to one of the public : — Held, that he was subject to the penalty under the 23 & 21 Vict. 0. 90 and 24 & 25 Vict, c, 91, a. 17, for dealing in game without a licence. Harnett V. Miles, 48 J. P. 455— D. Ground Game — Sight vested in Person other than Occupier] — When at the date of the pass- ing of the Ground Game Act, 1880, land is in the occupation of a tenant with a legal in- terest, as tenant from year to year, expiring after the commencement of the act, but also with an equitable interest under an agreement prior to the act for a lease for fourteen years, to com- mence from the expiration of the legal interest, and reserving to the landloid the right to the ground game on the land, such right in the land- lord as against the tenant is preserved by the provisions of the saving clause of the act (s. 6) : 833 GAMING AND WAGERING. 834 the phrase "is vested" not being confined to an aetuaj legal vesting a lease in possession, but including an equitable vesting of the right under an agreement for a lease, contract of tenancy, or other contract bonS, fide made for valuable con- sideration. Alllmsen v. Broohing, 26 Ch. D. 559 ; 53 L. J., Ch. 520 ; 51 L. T. 57 : 32 W. R. 657— Chitty, J. By lease dated 4th September, 1 865, H. demised to L. the shooting and game of the lands of P. for twenty years from the 1st November, 1863. In 1874 L. assigned to B. and W., who after the expiration of the lease continued to hold the right of shooting as tenants from year to year. By lease dated the 28th June, 1869, H. demised to C. the lands of P. for the term of sixty years, reserving to the landloi-d the game : — Held, that the case came within s. 5 of the Ground Game Act of 1880, and that C. was not entitled on the expiration of the lease of 1865 to take and kill ground game. Sassard v. Clark, 13 L. K., Ir. 391— V.-C. Spring Traps — Owner in Possession.] — By the 6th section of the Ground Game Act, 1880, no person having a right of killing ground game under this act or otherwise, shall use any firearms for the purpose of killing ground game between the expiration of the first hour after sunset, and the commencement of the last hour before sunrise ; and no such person shall, for the purpose of killing ground game, employ spring traps except in rabbit holes, nor employ poison ; and any person acting in con- travention of this section, shall, on summary con- viction, be liable to a penalty not exceeding 2Z. : — Held, that the section does not apply to an owner of land doing any of the acts prohibited therein upon his own land. Smith v. Hunt, 54 L. T. 422 ; 50 J. P. 279 ; 16 Cox, C. C. 54— D. Spring Traps —Tenant with Bight of Shooting.] — A tenant of land who is under his agreement entitled to the game and right of shooting thereon, is liable to a penalty, under s. 6 of the Ground Game Act, 1880, for employ- ing spring traps in the open for the purpose of killing ground game. Saunders v. Pitfield, 58 L. T. 108 ; 52 J. P. 694 ; 16 Cox, C. C. 369 — t). Overstocking Land — Injury to Crops — Bight of Action,] — Where land is let to a tenant re- serving the right of shooting over the land, the tenant may maintain an action against the persons entitled to the right of shooting for overstocking the land with game so as to cause damage to the tenant's crops. jFarrer v. Nelson, 15 Q. B. D. 258 ; 54 L. J., Q. B. 385 ; 52 L. T. 786 ; 33 W. R. 800 ; 49 J. P. 725— D. Prevention of Poaching — Search by Constable in Highway.] — A police constable saw the ap- pellant in a highway with some rabbits slung over his back. The appellant left the highway and ran across a meadow followed by the police constable, and on being overtaken, at a distance from the highway, he threw the rabbits on the ground, and they were then and there taken possession of by the police constable. On appeal against a conviction under 25 & 26 Vict. c. 114, s. 2 : — Held, that the conviction was right. ISirner v. Morgan, (10 L. R., C. P. 587) com- mented on. Lloyd v. Lloyd, 14 Q. B. D. 725 ; 53 L. T. 536 ; 33 W. R. 457 ; 49 J. P. 630 ; 16 Cox, C. C. 767— D. Abetting Poachers — Carrier buying Game firom Poachers.]- M., a constable at half-past seven in the morning in the month of October, stopped L. driving a carrier's cart on the high- way, and after questioning L. searched it. M. found two pair of rabbits (of which L. gave no account), and seized them under 25 & 26 Vict. c. 114, s. 2. L., on being served with a summons, said " I bought them of a man 1 did not know. This was the first time I have been summoned, I won't have any more of them " : — Held, that the evidence was not sufficient to justify the justices in convicting L. of aiding persons un- known, who unlawfully went on land in pursuit of game. Lawley v. Merrichs, 51 J. P. 502 — D. Trespass in Pursuit — Claim of Bight by Tenant.] — B. was tenant of lands, there being no reservation of game by the landlord, and B. let the land to A. to get and cut the hay, and both B. and A. gave leave to P. to shoot game over the land. P. was convicted under 1 & 2 Will. 4. c. 32, s. 30, of trespassing in pursuit : — Held, that the justices were wrong, for the whole right to the game was in B. and A., and P. having the leave and authority of both had a good claim of right to the rabbits. Pochin v. Smith, 52 J. P. 4 — D. Night Poaching — Proof of Previous Con- viction.] — Where a person is indicted for night poaching after two previous convictions, the previous convictions should not be proved until the jury find a verdict on the facts of the case. Reg. v. Woodfield, 16 Cox, C. C. 314— Hawkins, J. GAMING AND WAGERING. Betting — Agent employed to make Bets in his own Name — Bepudiation of Bet before Payment — Implied Contract to Indemnify.] — The plain- tiff, a turf commission agent, was employed by the defendant to make bets for him in the plaintiff's own name. After the plaintiff had so made some bets, but before he had paid those which were lost, the defendant repudiated the bets. On the settling day the plaintiff, who was a member of Tattersall's, paid the bets, as, if he had been a defaulter, he would have been subject to certain disqualifications in connexion with racing mat- ters, and he then sued the defendant for the amount so paid : — Held (Brett, M.R., diss.), that he was entitled to recover the amount so paidi Read v. Anderson, 13 Q. B. D. 779 ; 53 L. J., Q. B. 5.S2 ; 51 L. T. 55 ; 32 W. R. 950 ; 49 J. P. 4 — C. A. • Bight of Principal to Becover Money re- ceived by Agent— 8 & 9 Vict. c. 109, s. 18.]— The plaintiff employed the defendant to make bets for him upon commission. The defendant having done so, received from the losers money in respect of bets so made which were won by him. The plaintiff claimed this money from the defendant, but the defendant refused to pay it on the ground that it was money won upon a wager,, and therefore that the plaintiff could not re-' B E 835 GAMING AND WAGERING. 836 cover, in consequence of the provisions of 8 & 9 Vict. c. 109, s. 18 :— Held, that the plaintiff was entitled to recover ; that the defendant had re- ceived the money for the use of the plaintiff ; that the provisions of 8 & 9 Yict. c. 109, s. 18 only apply to the original contract betvpeen the two persons who make a bet, and that they do not make void a contract such as that which the plaintiff had made with the defendant. Bridger v. Savage, IB Q. B. D. 363 ; 54 L. J., Q. B. 464 ; 53 L. T. 129 ; 33 W. E. 891 ; 49 J. P. 725— C. A. Place used for Betting — Kacecourse.] — Dog- races were held in an inclosed field hired for the purpose by a committee, the public being ad- mitted to a reserved portion of the field on pay- ment of a small sum. The appellant attended the races, and moved about the reserved portion, making bets with various persons there : — Held, that the appellant did not use a place for the purpose of betting with persons resorting thereto, within the meaning of ss. 1 and 3 of 16 & 17 Vict. 0. 119, and therefore was not liable to be convicted for an offence under those sections. Snow V. Hill, 14 Q. B. D. 588 ; 54 L. J., M. C. 95 ; 52 L. T. 859 ; W. R. 475 ; 49 J. P. 440 ; 15 Cox, C. C. 737— D. Bicycle Grounds — Liability of Manager.] — The appellant was manager of bicycle grounds. Bicycle races, at which 20,000 spectators were present, took place there. Placards, with the words " No betting allowed," were posted in the grounds, and twelve police constables were em- ployed there by the manager, but some betting took place about twenty yards from the winning- post where he stood, acting as judge of the races. He was aware that betting would and did take place, but could not have wholly prevented it under the circumstances, although he might have repressed it to a certain extent with the aid of the constables : — Held, that as the business of the grounds was not that of illegal betting vsdthin 16 & 17 Vict. c. 119, s. 1, he was not liable to conviction under s. 3, as a " person having the care or management of orin any manner assisting in conducting the business of any .... place opened, kept, or used for the purposes aforesaid." Reg. V. Cook, 13 Q. B. D. 377 ; 51 L. T. 21 ; 32 W. R. 796 ; 48 J. P. 694— D. Betting Houses — Advice with respect to Wagers — Advertisement.] — The Betting Act, 1874, is confined to such bets as are mentioned in the Betting Act, 1853, that is, to bets made in any house, office, or place kept for betting, and the act does not apply to advertisements offering information for the purpose of bets not made in any house, oifice, or place kept for that purpose. Cox v. Andrews, or Andrews v. Cox, 12 Q. B. D. 126 ; 53 L. J., M. C. 34 ; 32 W. fi. 289 ; 48 J. P. 247— D. Unlawful earning — Baccarat — Common Gaming House.] — A. was the proprietor of the Park Club and was also occupier of the pre- mises used by the club, and received the profits. B., C, D., and E. were members of the com- mittee of management, whose duty it was to regulate the internal management of the club, and (amongst other things) to make bye-laws and regulations for the carrying it on and for the government of its members, who were elected by them. F., G., and H. were members of the club. By the rules and regulations of the club, hazard was not to be played, dice were ex- cluded, and the points at whist were limited to \l. ; all games were to be played for ready money ; and under no pretence were strangers to be admitted to the card-room. An entrance fee of 10 guineas and an annual subscription of 6 guineas was paid by each member of the club. The kitchen was conducted at a loss, and wines and cigars supplied at a slight excess over cost price. The profits accruing to the proprietor arose from the entrance fees and subscriptions, and what was called " card money." Members' cheques were cashed by the proprietor to the amount of 200?., for which he charged 1 per cent. The game of baccarat was played nightly. Upon an in- formation charging the eight persons above- named with having committed offences against s. 4 of 17 & 18 Vict. u. 38, A., the proprietor, was adjudged to have been guilty of " keeping and using the Park Club for the purpose of unlawful gaming," and fined 500Z. The four committee- men were adjudged to have been guilty, as persons " having the care or management of and assisting in conducting the business " of the house so kept and used for the purpose of unlaw- ful gaming, and were each fined 500Z. The three players were also adjudged to have been guilty of the offence, as persons who " assisted by playing in conducting the business of the house so kept and used for the purpose of unlawful gaming," and were each fined lOOZ. : — Held, that the proprietor of the club and the four members of the committee were properly convicted ; but that the players, — though possibly liable to be in- dicted for unlawful gaming in a common gaming- house, — were not liable to be summarily con- victed under this statute. Jenlts v. Turpin, 13 Q. B. D. 505 ; 53 L. J., M. C. 161 ; 50 L. T. 808 ; 49 J. P. 20 ; 15 Cox, C. C. 486— D. Per Hawkins, J. : — If the house in question had been opened and used for a double purpose, viz., as an honest sociable club for those who did not desire to play, as well as for the purposes of gaming for those who did, it would not the less be a house opened and kept "for the purpose of gaming." To constitute -'unlawful gaming," it is not necessary that the games played shall be unlawful games : it is enough that the play is carried on in a " common gaming-house." The expression " unlawful games " was intended by the legislature to cover and include some games which, being lawful in themselves, were only made unlawful when played in particular places or by particular persons. It makes no difference that the use of the house and the gaming there- in is limited to the subscribers or members of the club, and that it is not open to all persons who might be desirous of using it. It is not a public, but a common gaming-house that is prohibited. " Baccarat " is a game of chance, and imlawful within 17 & 18 Vict. c. 38, ti. 4. Excessive gaming per se is not any longer a legal offence ; it was not an offence at common law ; and there now exists no statute against it. But the fact that it is habitually carried on in a house kept for the purpose of gaming is cogent evidence for a jury or other tribunal called upon to determine whether the house inwrhich it is carried on is a common gaming-house, so as to make the keeper of it liable to be indicted for a nuisance at com- mon law. li. 837 GAS AND GAS COMPANY. 838 Per A. L. Smith, J.: — A "common gaming- house " is a house kept or used for playing therein at any game of chance, or any mixed game of chance and skill, in which (1) a bank is kept by one or more of the players exclusively of the others, or (2) in which any game is played the chances of which are not alike favourable to all the players, including among the players the banker or other pereon by whom the game is managed or against whom the other players stake, play, or bet. It is immaterial whether the bank is kept by the owner or occupier or keeper of the house or by one of the players. Tb. Permitting Gaming on Licensed Premises. ] — See Intoxicating LignoRS (Offences). Lattery — Inclosing Honey in Packets.] — H. kept a shop for the sale of sweets and sold penny packets of caramel, several of which contained a halfpenny in addition to a fair pennyworth of sweets. There had been no advertisement as to these inclosures : — Held, that H. was rightly convicted under 42 Geo. 3,c. 119, s. 2, of keeping a lottery. Hunt v. Williams, 52 J. P. 821— D. By 42 Geo. 3, c. 119, s. 2, it is made an offence to keep any office or place to exercise any lottery not authorised by parliament. The ap- pellant erected a tent, in which he sold packets, each containing a pound of tea, at 2.s. 6d. a packet. In each packet was a coupon entitling the pur- chaser to a prize, and this was publicly stated by the appellant before the sale, but the purchasers did not know until after the sale what prizes they were entitled to, and the prizes varied in character and value. The tea was good and worth the money paid for it : — Held, that what the appellant did constituted a lottery within the meaning of the statute. Taylor v. Smetten, 11 Q. B. D. 207 ; 52 L. J., M. C. 101 ; 48 J. P. 36— D. Wagering Policies — Want of Insurable In- terest — Return of Premiums.] — J. H. efEected vrith the defendant company two policies of in- surance on the life of his father, J. H., in which he had no insurable interest. According to the policies the premiums were to be paid weekly. J. H., the son, continued to make these weekly payments for some years. J. H., the father, had at first no knowledge of the insurances efEected on his life ; but when he became aware of them he objected to their being continued, and gave notice to that effect to the company. J. H., the son, then gave notice to the defendants that the policies were at an end, and claimed the return of the amount of the premiums. The defendants refused to pay, and J. H., the son, brought his action for their recovery, and the county court judge gave judgment for the plaintiff :— Held, that under the circumstances of the case the policies were wagering policies, and consequently the premiums paid in respect of them could not be recovered. Howard v. Refuge Friendly Society, 54 L. T. 644— D. Cheque or Note given for Gambling Tran- sactions — Consideration. ] — The plaintiff brought an action to recover the amount due on two promissory notes given by the defendant to B. in respect of certain gambling transactions, on the Stock Exchange, and indorsed over by B. to the plaintiff for valuable consideration : —Held, that the plaintiff's right to recover was not affected by the fact that he had notice of the notes having been given by the defendant to B. in respect of gambling transactions, the consi- deration for the notes not being illegal, but falling only within the category of void contracts under 8 & 9 Vict. c. 109. Liiley v. RanUn, 56 L. J., Q. B. 248 ; 55 L. T. 814— D. A cheque given in payment for counters ob- tained from the secretary of a club to enable the purchaser to gamble at cards, cannot be sued upon by the secretary. St. Oroix v. Morris, 1 C. & E. 485— Stephen, J. GARNISHEE. See ATTACHMENT OF DEBTS- INTERPLEADER. GAS AND GAS COMPANY. Supply for Consumption outside Company's District—" Supplying gas for Sale "—Point of Delivery.] — Prior to the passing of the Metropolis Gas Act, 1860, the metropolitan gas companies were not bound to supply gas to their customers, and the districts within which they had statutory powers were so interlaced that inconvenience ensued, e.g., from the frequent taking up of streets. To remedy this the Metropolis Gas Act, 1860, was passed, which, by s. 6, assigned a certain district to each metropolitan gas company and provided that no other company or person should "supply gas for sale within the said limits" unless authorised by parliament so to do. By s. 14 the supply of gas to the owners or occupiers (requiring such supply) of premises within or partly within the company's premises was made comptdsory. The Nine Elms station of the London and South-Western Railway Company was partly within the district of the plaintiff company and partly within that of the defendant company. The defendant company sold to the railway company (on their requiring the same) gas which was used to illuminate the whole of the station. The meter was placed at a point within the defendant company's district, and from this point the gas passed through pipes laid on the railway company's premises to the various points where it was consumed, including all such points as were within the plaintiff company's districts : — Held, that the sale and delivery of the gas took place at the meter, and that the defendant company were not, therefore, infringing s. 6 of the act. Gas Light and Cohe Oommany v. So'ath Metropolitan Gas Company, 58 L. T. 899 ; 36 W. B. 455— C. A. Affirming 56 L. J., Ch. 858— Kekewich, J. Reversed m H. L. [S. Y.— Imperial Gaslight and Coke Co. V. West London Junction Gas Co., 56 L. J., Ch. 862, n.— L.JJ.] Accounts— Special Act— Subsequent General Act containing inconsistent Provisions.]— The E E 2 889 GAS AND GAS COMPANY. 840 Leamington Priors Gas Company's Act, 1865 (28 Vict. c. cxxviii.), which incorporated the Gas- works Clauses Act, 1847, except so far as it might be varied by any provision of the special act, prescribes by s. 32 a special form in accord- ance with which the annual accounts of the company were to be made up, in lieu of pro- visions as to accounts contained in s. 38, of the Act of 1847. By s. 49 of the Act of 1847, under- takers are not to be exempted from any general act relating to gasworks which may be passed in any future session. By s. 1 of the Gasworks Clauses Act, 1871, that act and the act of 1847 are to be construed as one act, and by s. 35 of the Act of 1871, the undertakers are to make an annual statement of accounts in the form pre- scribed by that act, and to furnish copies of the same to any applicant. The appellants made out their annual statement of accounts in the form prescribed by s. 32 of their special act, and did not furnish to the respondent on application, a copy of an annual statement of their accounts made out in the form prescribed by the act of 1871 : — Held, that as the appellants' special act prescribed the form in which the annual statement of accounts was to be made up, the provisions relating to the form of accounts in s. 35 of the Gasworks Clauses Act, 1871, did not apply. Dudley Gasworlts Company v. War- mington (50 L. J., M. C. 69) distinguished. Leamington Priors Gas Company v. Davis, 18 Q. B. D. 107 ; 56 L. J., M. C. 14 ; 55 L. T. 734 ; 35 W. R. 123 ; 51 J. P. 360— D. Jurisdiction of Quarter Sessions — Power to re-open Accounts — Costs of Inquiry.] — By s. 35 of the Gasworks Clauses Act, 1847, a court of quarter sessions may, on the petition of two gas-ratepayers, appoint some accountant, or other competent person, to examine and ascer- tain at the expense of the gas company (the amount of the expense to be determined by the court) the actual state and condition of the concerns of the company, and to make a report thereof to the court, and power is given to the court to examine witnesses on oath touching the truth of the said accounts and the matters therein referred to ; and if it appear, to the court that the profits of the company during the preceding year have exceeded the prescribed rate, the court has power, in case the whole of the reserve fund has been and remains invested, and in case dividends to the amount thereinbe- fore limited have been paid, to make an order reducing the price of the gas supplied by the company. A petition was under this section presented to the recorder of Hanley praying him to appoint a person to inquire into the actual condition of the undertaking of the prosecutors, and an accountant was appointed. During the inquiry he examined not only the accounts of the then previous year, but re-opened all the accounts of previous years to 1871, and a, report based upon this inquiry was sent in by him to the recorder. It was admitted that the whole of the reserve fund was not then and never had been invested, and that the prescril'ed maximum dividend had not been paid. The recorder, being of opinion that the accounts when amended showed that the company had in point of fact earned enough to pay the prescribed maximum dividend, and to have invested and kept invested the whole of the reserve fund, made an order re- ducing the price of gas 6d. per 1000 cubic feet. He further ordered the prosecutor to pay 660Z., the expense of the proceedings before the accountant, and to pay to the petitioners 2,4332. 6«. 6d., " their costs of and incident to the petition." Upon an application for a writ of certiorari to quash the order as being made with- out jurisdiction : — Held, that the order to reduce the price of gas was bad, the power of the recorder being absolutely restricted by s. 35 to- cases where the whole of the reserved fund has been invested and the prescribed dividend paid ; and that the recorder acted without jurisdiction in ordering the costs of the petitioners to be paid by the prosecutors. Beg. v. Hanley {Recorder), 19 Q. B. D. 481 ; 56 L. J., M. C. 125 ; 57 L. T. 444 ; 36 W. R. 222 ; 52 J. P. 100— D. The accountant and the recorder had juris- diction to inquire into the accounts of past years for the purpose of ascertaining the actual condition of the concern ; but, semble, that they had no power to disallow and re-cast them, and by so doing vary the accounts of the year into which they were inquiring. lb. Appointment of Engineer to assist Ac- countant.] — The Court of Quarter Sessions has no jurisdiction, under s. 35 of the Gasworks Clauses Act, 1847, to appoint a gas engineer to assist an accountant appointed thereunder to examine and ascertain the actual state and condition of the concerns of the gas company, and where such order is made a writ of certiorari will lie to bring the order up to be quashed. Reg. v. Briiidley, 54 L. T. 435 ; 50 J. P. 534— D. Application by Consumers — Accumulation of Profits — Seduction of Price.] — Certain con- sumers of gas brought an action against the gas company which supplied them, on the ground that the company had created a reserve fund greatly in excess of that authorised by its special acts, and had carried over from year to year, large undivided profits, thereby avoiding the obligation upon it to reduce the price of the gas which it so supplied : — Held, that no such duty as alleged was imposed by the acts on the com- pany ; that the consumers had no control over the affairs of the company, and were not, there- fore entitled to raise the question, the share- holders alone being interested ; and that the court could not order the reserve fund and un- divided profits to be applied in reduction of the price of the gas in the manner suggested. Mason v. Asliton Gas Company, 54 L. T. 708.; 50 J. P. 628— C. A. "Street, Highway, or Public Place" — laying Mains on Sea-shore.] — A gas company laid down main pipes between two villages on the sea- shore in an open tract of land above mean high- water mark, which belonged to the owner of the enclosed land fronting the shore. The in- habitants of the villages had always gone to and fro between them along the shore, and at high water passed over this piece of land as they chose and in accordance with the tide, but by no defined track. The owners brought an action for a mandatory injunction to compel the com- pany to remove the pipes : — Held, that the tract of land in question was not a " street, highway, or public place" within the meaning of the Gasworks Clauses Act, 1847. Maddooh v. Wal- 841 GAS AND GAS COMPANY. 842 lasey Local Board, 55 L. J., Q. B. 267 : 50 J. P. 404— D. Support of Mains laid in Highway without Statutory Powers — Subsequent Act giving Autho- rity — Compensation.] — A limited gas company, acting without any statutory authority, and with- out the authority of the landowner, but with the permission of the highway authority, laid pipes under the soil of the highway. Sub- sequently a gas company was constituted by a private act, which incorporated the Gasworks ■Clauses Acts, 1847 and 1871. The private act of this company provided for the dissolution of the limited company, and enacted that all the lands, gasworks, easements, mains, pipes, plant, and apparatus placed by, vested in, or which were the property of the limited company imme- diately before the passing of the act, should be similarly vested in the incorporated com- pany, and the incorporated company were em- powered to maintain the existing gasworks and to lay down and maintain additional mains and pipes. The Gasworks Clauses Act, 1847, gives power to undertakers of gasworks to open the soil within their district, to lay and repair pipes therein, and to do other acts necessary for supplying gas, making compensation for any •damage done in the execution of such powers. The Gasworks Clauses Act, 1871, renders it compulsory on undertakers of gasworks to supply gas on certain conditions and within ■certain limits. The defendants, the lessees of the minerals under and adjacent to the highway under which the plaintiffs had laid their pipes, had by working the coal thereunder let down the soil of the highway and caused injui-y to the plaintiffs' pipes : — Held, that the plaintiffs were •entitled to support for their pipes, and that the landowner was entitled to compensation for the burden thus imposed upon him ; that the plain- tiffs could therefore recover damages by action ior any injury caused to their pipes, while the owner of the minerals could recover compen- sation in an arbitration for the limitation thus put upon the user of his lands. NorinanUm Gas Company v. Pope, 52 L. J., Q. B. 629 ; 49 L. T. 798 ; 32 W. R. 134— C. A. Affirming, 47 J. P. 181— D. Injury to Pipes under Boads by Steam JBoller.] — The plaintiffs, a gas company, laid down pipes under the surface of certain streets, as they were bound by statute to do, for the purpose of supplying gas to light the street and houses in the streets. The streets were vested in the defendants, the vestry of the parish, by •certain statutes which gave them the authority -of the surveyor of highways, and -with the duty to repair, but without prescribing any particular mode of repair. The defendants used steam- rollers for the repair of the streets, as being a mode of repair most advantageous to both the ratepayers and the public, but the rollers they used were so heavy as to frequently injure the plaintiff's pipes, though the pipes were suffi- ■ciently below the surface so as not to have been injured by the ordinary mode of repair if such rollers had not been used : — Held, that the plaintiffs were entitled not only to recover damages for the injury which had been done, but also to have an injunction to restrain the defendants from using steam rollers in such a way as to injure the pipes of the plaintiffs. Gas Light and CoTie Company v. St. Mary Aibott's Vestry, 15 Q. B. D. 1 ; 54 L. J., Q. B. 414 ; 53 L. T. 457 ; 33 W. R. 892 ; 49 J. P. 469 — C. A. Affirming 1 C. & B. 368— Field, J. Laying Pipe to communicate with Pipe of Company without Consent.]— The appellants, on their own premises, substituted for part of a gas pipe belonging to the respondents a larger pipe for the purpose of increasing their supply. This was done without any fraud, waste, or mis- use of the gas, but without the respondents' con- sent, although notice of intention to disconnect the pipe from the meter was duly given under s. 15 of the Gasworks Clauses Act, 1871. Upon summons a stipendiary magistrate convicted the appellants under s. 18 of the Gasworks Clauses Act, 1847 : — Held, upon a case stated, that the appellants had within the meaning of that section caused to be laid a pipe to communicate with a pipe belonging to the undertakers without their consent ; and that the magistrate rightly convicted them. Wood v. West Ham Gas Company, 52 L. T. 817 ; 33 W. R. 799 ; 49 J. P. 662— D. Distress for Honey due to Company for Gas.] — By their special act (39 & 40 Vict. c. cxix. s. 44) the corporation of Walsall were empowered to " recover from any person any rent or charge due to them by him for gas supplied, by the like means as landlords are for the time being by law allowed to recover rent in arrear " : — Held, that, after the filing of a liquidation petition by a customer, the corporation were entitled as against the trustee in the liquidation to levy a distress in respect of a sum due by the debtor for gas supplied to him before the filing of the petition. Harrison, Ex parte, Poalie, In re, 13 Q. B. D. 753 ; 53 L. J., Ch. 977 ; 51 L. T. 878— D. Held, also, that the corporation were not, within the meaning of s. 34 of the Bankruptcy Act, 1869, " other persons " to whom any rent was due by the debtor, but that, by virtue of s. 44 of the special act, they were entitled to the rights given to landlords by s. 34. The payment to a gas company for gas supplied, though it is called " rent " in some acts of parliament, is not really of the nature of rent, and consequently a gas company does not come within the words ■' other person to whom any rent is due " in s. 34 of the Bankruptcy Act, 1869. Those words apply only to a person who, though he is not the land- lord of the bankrupt, fills a position analogous to that of a landlord, because he is entitled to receive that which is rent strictly so called. Birmingham Gas Light Company, Ex parte (11 L. R., Eq. 615), and Hill, Ex parte (6 Ch. D. 63), commented on. IT). Gas-stoves let for Hire — Exemption from Dis- tress.]- — By s. 14 of the Gasworks Clauses Act, 1847, " The undertakers may let for hire any meter for ascertaining the quantity of gas con- sumed or supplied, and any fittings for the gas . . . and such meters and fittings shall not be subject to distress ... for rent of the pre- mises where the same may be used" : — Held, that a gas-stove let for hire was within the words "fittings for the gas," and therefore was not subject to distress for rent. Gaslight and Cohe Company v. Hardy, 17 Q. B. D. 619 ; 56 L. J., Q. B. 168 ; 55 L. T. 585 ; 35 W. R. 50 ; 51 J. P. 6— C. A. 843 Trust, Creation TEE. GIFT— GOODWILL. 844 GIFT. ot.]—See Trust and Tetjs- Bonatio mortis caus^.] — See Will. Setting Aside.]— i&e Undue Inplubnce. Freeholds — ^Advance — Possession of Deeds.] — In 1878 A. entered into a contract for the sale to him of two freehold houses at the price of 6501. The deposit of 501. was paid by him, and 360Z., part of the balance, was obtained from his niece B., to whom he gave his I O U. On the 21st August, 1878, the wife of A. by his direction, wrote to B. as follows : " A. bought two houses yesterday, and he is going to have them settled and signed in your name, and give them to you. I send you the conditions of sale for you to look at, and I should like you to come and see A. . . . . Bring your bank book with you, as what you have might as well go into them as for us to pay interest. It is all right, I can assure you. I sent the 501. by cheque last night, on de- posit." On the 25th October, 1878, the two houses were duly conveyed to A., and he directed his wife to hand over the title deeds to B., and he also said to his wife that the deeds belonged to B., and were of no use to his wife. The deeds were sent to B., by A.'s wife. Subsequently A. died intestate, and his eldest brother and heir-at- law commenced an action against B., claiming a declaration that he, the plaintiff, was entitled to the rents and profits of the two houses and the delivery wp of the title deeds : — Held, that there was evidence of an intention on the part of A. to give the property to B. ; but that no gift of it had in point of law been made ; but held, that there was sufficient evidence of a contract to create an equitable mortgage in favour of B., and upon which the possession of the title deeds by B. originated ; and that there should be a redemption decree upon that footing, the costs of B. being added to her security. Mc3Iahon, In re, McMahon v. McMahon, 55 L. T. 739 — Ghitty, J. Shares — 1 U — Intention of Donor.] — A. held certain bank shares in tmst for his father B., under a written acknowledgement of the trust. B. indorsed on the acknowledgment : " I transfer these shares to my daughter C. for her sole use and benefit." — B. also held two I U's, one from A., the second from another person in- debted to him. Upon each of these B. indorsed : " I transfer the debt of & to my daughter C, for her sole -use and benefit." B. signed these indorsements, and handed the acknowledgment and I U's to 0. There was no consideration for the transfer. B. did not give any notice of it to A. or the debtor upon the second I U, and continued till his death, five years later, to receive the dividends on the shares and the in- terest on A.'s I U : — Held that, although the indorsements, accompanied by the delivery of the acknowledgment and I U's were capable, if followed by notice to the trustees and debtors, of operating as equitable assignments, yet as it appeared, having regard to the evidence and especially to B.'s receipt of the subsequent divi- dends and interest, that he did not intend at the time of the indorsement to divest himself abso- lutely of bis property in the shares or debts, but attempted at most to effect a disposition to become operative only at his death, and in the meanwhile to be ambulatory and revocable, they did not constitute a complete gift enforce- able in equity. Gason v. Rich, 19 L. E., Ir. 391 — C. A. GLEBE. See ECCLESIASTICAL LAW. GOODS. Assignment of.] — See Bills of Sale. Selling.] — See Sale. Converting.] — See Tbovek. GOODWILL. Definition of.] — The goodwill which attaches to a house from its being well known or situated in a good thoroughfare adds to the value of the house and would pass to the mortgagee under a mortgage of the house ; but the goodwill which attaches to the personal reputation of the owner of the house would not pass to the mortgagee. Per Cotton, L, J. Cooper v. Metropolitan Board of Works, 25 Ch. D. 472 ; 53 L. J., Ch. 109 ; 50 L. T. 602 ; 32 W. K. 709— C. A. Sale of— Covenant by Vendor not to carry on Business in his Name.]— A covenant by a vendor of a business and the goodwill thereof, that he would not for a term of years carry on the business of a manufacturer either by himself or jointly with any other persons under the name or style of J. H., or H. Brothers, the name of the business which he had sold, is not a covenant that the vendor would not carry on business as a manufacturer, but against using a particular name or style in trade, and an injunction was granted to restrain a breach of tbe covenant. Vernon v. Hallam, 34 Ch. D. 748 ; 56 L. J., Ch. 115 ; 55 L. T. 676 ; 35 W. E. 156— Stirling, J. Soliciting Customers — Injunction to Restrain.] — Where a vendor sold his business and commenced a similar business in the same locality and solicited customers of the old house to deal with him, the court, following the de- cision in Pearson v. Pearson (27 Ch. D. 145), and being of opinion that the case of Zaiowohere V. Dawson (13 L. E., Bq. 322) had been over- ruled by the decision in that case, refused to grant an injunction to restrain such solicitation. lb. 845 HABEAS CORPUS. 816 T. P., as trustee of a will, carried on a business ■which had been carried on by the testator under the name of James P. By an agreement made to compromise a suit, James P., a son of the testator and a beneficiary under his will, agreed to sell to T. P. all his interest in the business, and in the property on which it was carried on. And it was provided that nothing in the agree- ment should prevent James P. from carrying on the like business where he should think fit, and under the name of James P. T. P. brought this action to enforce this agreement, and to restrain James P. from soliciting the customers of the old firm. An injunction was granted on the authority of Lahtmclmre v. Dawson (13 L. R., Eq. 322), and the cases in which it had been followed : — Held (dissentiente Liudley, L.J.), that Laboucliere v. Dawson was wrongly de- cided, and ought to be overruled, and that even apart from the proviso in the agreement, the plaintiff was not entitled to the injunction which he had obtained : — Held, by the whole court, that the proviso in the agreement autho- rised the defendant to carry on business in the same way as any stranger might lawfully do, and took the case out of the authority of Labou- eliere v. Dawson, supposing that case to have been well decided. Pearson v. Pearson, 27 Ch. D. 145 ; 54 L. J., Ch. 32 ; 51 L. T. 311 ; 32 W. R. 1006— C. A. Bight to Use old Name.] — A vendor who had carried on a business under the name of " Madame Elise," which was the name of his wife, sold the goodwill and interest of the busi- ness, together with the exclusive right of using the name of " Madame Elise and Company : " — Held, that the purchaser was not entitled to trade under the old name alone, inasmuch as it would lead people to believe that the old busi- ness was still being carried on, and might cause the vendor to incur liability. Chatteris v. Isaacson, 57 L. T. 177 — Kekewich, J. A firm of solicitors consisting of three partners, carried on business under the style of " Chappell, Son, & Griffith." The senior partner having died, the business was continued by the son and the junior partner under the same style for upwards of three years. The partnership was then dissolved, an agreement being executed providing for the dissolution, but containing no reference to the goodwill of the business or the sale or disposal thereof. After the dissolution, the business of a solicitor was carried on by Chappell, the son, on the premises held by the original firm under the style of " Chappell & Son." Griffith, having taken offices a few doors off, also carried on the business of a solicitor, under the style of " Chappell & Griffith." To this Chappell objected, and having commenced an action to restrain Griffith from carrying on business under the style referred to, moved for an interim injunction. It was proved that im- mediately before the dissolution of the partner- ship, Griffith had written to Chappell, stating that he intended to carry on business under the style of "Chappell & Griffith," and making suggestions as to the style Chappell should adopt. Circulars were also forwarded by Griffith to all the clients of the old firm, inform- ing them that he proposed to carry on the busi ness of a solicitor by himself, and stating the style that he intended to adopt : — Held, that the prim^ facie right of the defendant was to use the name of the old firm, no arrangement having been made as to the goodwill of the business ; that from the natui'e of the business and from the fact that the style of the original firm had been used with a variation, there was practically no risk that the plaintiff would be exposed to injury by what the defendant was doing j and that, therefore, no case had been made for the intermediate interference of the court. Chappell V. Griffith, 53 L. T. 459 ; 50 J. P. 86— Kay, J. GROWING CROPS. See BILLS OF SALE. GUARANTEE. See PRINCIPAL AND SURETy. GUARDIAN. Of Infants.]— (See Infant. Of Poor.]— See Pook Law. HABEAS CORPUS. Prisoner wishing to argue Case in Person.]— The court cannot grant a habeas corpus to a party to a suit, in custody, to enable him to appear in • court merely for the purpose of arguing his case in person. Weldon v. Neal, 15 Q. B. D. 471 ; 54 L. J., Q. B. 399 ; 33 W. R. 581— D. Appeal to Court of Appeal.] — See cases, ante, col. 23. HARBOURS. See SHIPPING. 847 HEALTH — Election and Constitution of Local Boards. 848 HEALTH. I. Election and Constitution of Local BOAKDS, 847. II. Powers and Jurisdiction of Local Boards. 1 . Food and Drugs. a. Adulteration, 848. b. Sale of Unsound Meat, 851. 2. Streets, 852. 3. Buildings, 855. 4. Sewers, 859. 5. Nuisances and Offensive Trades, 861 . 6. Lodging Houses, 864. 7. In other Cases, 864. III. Expenses — Payment and Kecovery of, 866. IV. Rates, 870. V. Arbitration, 873. VI. Contracts by and with Local Boards. 1. In General, 874. 2. LiaWlity of Officers for Penalties, 875. VII. Actions and Proceedings against Local Boards, 877. I. EtECTION AND CONSTITUTION OF LOCAL BOAEDS. Disqualification of Candidate — Composition with Creditors — Time for filling casual Vacancy.] — A candidate for election as member of a local board of health had assigned all his property by deed to a trustee for the benefit of those of his creditors who should sign the deed, no sum being mentioned in it as a composition to be paid on the debts therein scheduled as due to them, and the creditors signing the deed thereby discharged him from all debts due to them by him : — Held, that he was not disqualified under 38 & 39 Vict. c. 55, Sched. II., r. 5, which provides that a person " who has entered into any composition with his creditors," shall be ineligible " so long as any proceedings in relation to such composi- tion are pending," even though at the time of his election some of his creditors had signed the deed, while others did not sign it till after the election, for that the deed was not a composition with creditors. Beg. v. Coolan, infra. Illegal Practice — Fabricating Voting Paper — Falsely assuming to act on behalf of Voter.] — The respondent, a candidate at an election for members of a local board of health, called at the house of a voter to whom a, voting paper had been sent, and asked her how she intended to vote, and to hand him the voting paper, which she did. He then inquired if she knew how to fill it up, and she replied in the afiirmative. The respondent thereupon, without any authority, express or implied from the voter, wrote in pencil the initials of the voter against his own name. The voter objected to his doing so. The respondent left the voting paper with the voter, with her initials so written by him against his own name, but with no other mark upon it. The voter subsequently struck out the initials so written by the respondent, and placed her initials against the names of three other candi- dates, and signed her own name to the voting paper. It was found that the respondent so pencilled the initials of the voter with the intent of indicating on her behalf that she intended to vote for him, and of inducing and procuring her to vote for him. The respondent was successful at the poll. A petition was lodged against his return, on the ground of illegal practices, inter alia, of fabricating in whole or in part a voting paper, and of falsely assuming to act in the name or on behalf of a voter : — Held, that the act of the respondent did not amount to a fabri- cation in whole or in part of the voting paper, nor to falsely assuming to act in the name or on behalf of the voter, vrithin the meaning of rule 69 of Sched. II., part 1, of the Public Health Act, 1875. Gough v. Murdoch, 57 L. T. 308; 35 W. E. 836 ; 51 J. P. 471— D. Casual Vacancy — Computation of Time.] — The time specified by r. 65 of Schedule II. of the Public Health Act, 1875, which provides that any casual vacancy on the board occurring " by failure duly to elect," shall be filled up by the board within six weeks, is to be computed from the day on which the retiring member goes out of office, and not from the day on which the election of a mem- ber to fill his place is held. Beg. v. Cooban, 18 Q. B. D. 269 ; 56 L. J., M. C. 33 ; 51 J. P. 500— D. Quorum — Lapse of Board — Informality.] — Seven members of a local board constituted under the Public Health Act, 1875, and consist- ing of nine members, resigned, so that the quorum of three required by Sched. I. r. 2, was not left. The two remaining members proceeded to fill up the vacancies. The board as thus con- stituted prescribed a building line under s. 155 of the act : — Held, by Pearson, J., that, as the resignations reduced the number of members to less than a quorum, the board had lapsed, that the two remaining members could not fill up the vacancies, that there was therefore no board, that the building line was therefore not well prescribed, and that Sched. I. r. 9, to the act did not cure the defect : — Held, by the Court of Appeal, that the filling up of vacancies was "business " within the meaning of Sched. I. r. 2, that the two members were not competent to transact it, and that the new members therefore were not duly elected ; but that by Sched. I. r. 9, the objection to the building line, founded on the fact that some of the members of the board were not duly elected, was removed. Newhave^i Local Board v. Newhaven School Board, 30 Ch. D. 350 ; 53 L. T. 571 ; 34 W. E. 172— C. A. II. POWERS AND JTJEISDICTION OF LOCAL BOAEDS. 1. FOOD AND DEUGS. a. Adulteration. Scienter of Seller.]— By s. 6 of the Sale of Food and Drugs Act, 1875, '• no pei-son shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser, under a penalty not exceeding 20Z." : — Held, that an offence within that section was committed, although the seller did not know that the article sold was not of the nature, substance, and quality demanded. Betts v. Armstead, 20 Q. B. D. 771 ; 57 L. J., M. G. 100 ; 58 L. T. 811 ; 36 W. R. 720 ; 52 J. P. 471— D. 849 HEALTH — Powers and Jurisdiction of Local Boards. 850 Bepresentation at Time of Sale.] — To con- stitute an oifeiice under s. 6 of the Food and Drugs Act, 1875, the representation of the "nature, substance, and quality" of the article must be made at the time of the sale. A prior false representation in this respect is no offence within the act, provided a true one is made at the time the sale actually takes place. Xirk v. Coates, 16 Q. B. D. 49 ; 55 L. J., M. C. 182 ; 54 L. T. 178 ; 34 W. E. 295 ; 50 J. P. 148— D. Tincture of Opium — British Pharmacopoeia — Standard of Quality.] — Upon a complaint under s. 6 of the Food and Drugs Act, 1875, for selling tincture of opium which was not " of the nature, substance, or quality," of the article demanded by the purchaser, it appeared that the drug which was sold as " tincture of opium " by the defendant was deficient in opium to the extent of one third, and in alcohol to the extent of nearly one half as compared with the standard prescribed by the British Pharmacopceia : — Held, that the defendant was liable to be convicted, although the purchaser had not specifically asked for tincture ot opium "prepared according to the recipe in the British Pharmacopoeia." White v. Sywater, 19 Q. B. D. 582 ; 36 V. E. 280 ; 51 J. P. 821— D. Article sold, wholly different from that De- manded.] — The Sale of Food and Drugs Act, 1875, after reciting that it is desirable to amend the law regarding the sale of food and drugs in a pure and genuine condition, provides by s. 6 that no person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser under a penalty : — Held, that s. 6 was not limited in its application to sales of adulterated articles, but that it applied also to cases in which the article sold was unadulterated but wholly different from that demanded by the pui-chaser. Knight V. Bowers, 14 Q. B. D. 845 ; 54 L. J., M. C. 108 ; 53 L. T. 234 ; 33 W. R. 613 ; 49 J. P. 614 ; 15 Gox, C. C. 728— D. Milk — Skimmed Milk.] — -It was proved on an information under s. 6 of the Sale of Food and Drugs Act, 1875, that the appellant, who was an inspector under the act, on asking the respondent, a mUk seller, for " milk," was sup- plied by the respondent with milk which had been skimmed, and which was, in consequence, as compared with normal milk as it comes from the cow, deficient in butter fat to an extent of 60 per cent. ; — Held, that on these facts it was not proved that any offence had been committed by the respondent against the provisions of s. 6 ■of the Sale of Food and Drugs Act, 1875. Lane V. Collins, 14 Q. B. D. 193; 54 L. J., M. C. 76; 52 L. T. 257; 33 W. E. 365; 49 J. P. 89— D. Coffee— Mixture with Chicory — Article asked for.] — A. went into H.'s shop and asked for half a pound of coffee, H. said she did not keep it, whereon A. pointed to certain tins labelled " coffee and chicory." H. said she sold that as a mixture, and A. asked for half a pound of it which H. sold. The mixture contained about 30 per cent, of coffee. H. was charged with selling ■coffee not of the nature, etc., of coffee : — Held, that the justices were wrong in convicting H. of selling coffee, for that she sold only a mixture as she was entitled to do, and in doing which, she committed no offence within s. 6 of 38 and 39 Vict. c. 63. Higgim v. Hall, 51 J. P. 293— D. Notice to Seller — Snflciency.] — W., the seller of spirits, was informed after the purchase that the article was to be examined by the "county analyst " and W. knew that the county analyst was the public analyst of the place : — Held, that this notice to W. was sufficient, though the words "public analyst" were not expressly used by the purchaser. Wheelter v. Weil, 51 J. P. 661 — D. Condition Precedent.] — The provisions of s. 14 of the Sale of Food and Drugs Act, 1875, do not apply to the purchase of an article unless for analysis, and therefore it is not a condition precedent to the right of a purchaser for con- sumption to take proceedings for a penalty under the Act that he should have given to the seller the notiiication required by that section. Parsons V. Birmingham Bairy Co. (9 Q. B. D. 172), dissented from. Bntiiakillen Union (^Guardians') V. Milliard, 14 L. K., Ir. 214— Ex. D. Sale — Corporation.] — A sample of milk in course of delivery by the defendant's servant under a contract for the delivery thereof to a workhouse, was procured for analysis by the master of the workhouse, and divided by him into three portions, one of which he retained, another he gave to the defendant's servant, and the third he inclosed in a bottle labelled " milk," and having on it the name of the contractor, and sent it by rail to the public analyst, who analysed it, and gave his certificate as provided by the statute. The defendant having been fined for the act of adulteration : — Held, that a pur- chase was shown under the Sale of Food and Drugs Acts, 1875, there being a buyer on one side and seller on the other ; that the provisions of s. 14 of that statute did not apply, and no notification was necessary as a condition pre- cedent to the bringing of the prosecution ; that there was sufficient evidence that the milk taken was the milk submitted to analysis ; and that a corporation such as the board of guardians was within the statute. li. Offer to divide Sample.] — E, purchased a pint of milk from C, and after the purchase told C. that he intended to have the milk analysed, and then offered to divide it with the seller who refused to accept it. The milk was found to be adulterated to the extent of nine and a-half degrees of added water : — Held, that it was not necessary for E. before the purchase to offer to divide the milk into three parts in so many words, and that this offer was a substantial compliance with the statute. Chapell v. Em-son, 48 J. P. 200— D. Written Warranty— Contract to supply Milk Daily.]— By s. 25 of the Sale of Food and Drugs Act, 1875, if the defendant, in any prose- cution under this act, prove to the satisfaction of the justices that he had purchased the article in question as the same in nature, substance, and quality as that demanded of him by the prose- cutor, and with a written warranty to that effect, he shall, under certain other specified conditions, be entitled to be discharged from the 851 HEALTH — Powers and Jurisdiction of Local Boards. 852 prosecution. Upon the hearing of an infomia- tion against the appellant, for having, contrary to the provisions of the act, sold, on the 12th of April, 1883, certain milk to the respondent, which was not of the nature,' substance, and quality demanded by him, as it contained a percentage of water, the appellant proved that he had purchased the article in question under a written contract made with F., on the 24th of March, 1883, whereby F. agreed to sell to the appellant eighty-six gallons of good and pure milk (each and every day) for six months, the said milk to be delivered twice daily : — Held, that this contract did not constitute a written warranty within the meaning of s. 25 in respect of the specific article sold by the appellant to the respondent on the 12th of April ; and therefore that the appellant was not entitled to be dis- charged from the prosecution. Harris v. May, 12 Q. B. D. 97 ; 53 L. J., M. C. 39 ; 48 J. P. 261— D. b. Sale of TTusouud Heat. Evidence that Meat was wrongly Condemned — Admissibility.] — Meat exposed by a butcher for sale was seized and condemned under the Public Health Act, 1875, ss. 116 and 117, as unfit for the food of man. Upon a charge against the butcher under s. 117 (which enacts that the person to whom the meat seized and condemned belonged shall be liable to a penalty), the justices admitted evidence that the meat was sound and fit for the food of man, and, being satisfied that it was so, dismissed the charge : — Held, that the justices decided correctly. Waye V. Thompson, 15 Q. B. D. 312 ; 54 L. J., M. C. 140 ; 53 L. T. 358 ; 33 W. R. 733 ; 49 J. P. 693 ; 15 Cox, C. C. 785— D. Tinder-bailiff — Person "to whom the same be- longs,"] — The appellant was an under-bailifE on the estate of N., a large landowner, and it was his duty to receive instructions from, and obey the orders of, the head bailiif. Two cows be- longing to N. were slaughtered, as they were affected by disease ; the appellant was not present when the cows were slaughtered, but on the same day he was told by the head bailiff to send the meat to Portsmouth, and to go there himself to meet it. The appellant went to Portsmouth on the foUomng day and saw a butciher named B.,. and on the next day, the head bailiff, having been told that the meat had not been sent off, directed the appellant to take the meat to P. railway-station and consign it to the butcher. The transit of the meat to the P. station was superintended by the appellant, who took charge of it. It was then sent by train in the appellant's own name to the butcher at Portsmouth, the appellant sending a telegram to the butcher, " Two carcases of meat addressed to you ; make best of it." The butcher replied that the meat, which was then lying at Ports- mouth railway-station, was of no use to him. The appellant then sent a telegram to the station- master : " Ask consignee to do the best he can. If he can't dispose of it, ask him to bury it, and charge sender expenses." The meat was seized while lying at the station, and condemned as unsound. Upon these facts the appellant was convicted, under the 117th section of the Public Health Act, 1875, of exposing unsound meat for sale, as being the person " to whom the same belonged " : — Held, quashing the conviction, that there was no evidence whatever upon the facts, to show that the appellant was the person " to whom the meat belonged " within the meaning of s. 117 of the act. Newton v. Monli- com., 58 L. T. 231 ; 51 J. P. 692 ; 16 Cox, C. C. 382— D. Condemnation day after Seizure — Whether Delay reasonable.] — Where unsound meat was seized by the inspector of nuisances at half -past nine in the evening, and he then went in search of a justice, but did not find one till next morn- ing at a quarter-past ten, when an order to con- demn the meat was made : — Held, that there had been no unreasonable delay, and that the justices were wrong in dismissing on that ground an information for having unsound meat for sale within the meaning of sections 116 and 117 of the Public Health Act, 1875. Burton, v. Sradley, 51 J. P. 118— D. 2. STREETS. "New Street" — Old Country Eoad.]— The term "new street" in the Public Health Act, 1875, s. 157, applies to an old country road near a town which, by the building of houses, along it, has become a street in the common sense of the word, notwithstanding that before the building of such houses it was a street within the meaning of s. 4 of the act. Robinson V. BaHon Local Board, 8 App. Cas. 798 ; 53 L. J., Ch. 226 ; 50 L. T. 57 ; 32 W. R. 249 ; 48 J. P. 276— H. L. (E). " Street " — Meaning of, in Section 150 of the PubUc Health Act, 1875.]— S. 150 of the Public Health Act, 1875, applies only to streets which are, in the ordinary and popular sense of the words, "streets;" and the word "street" in. that section does not necessarily include every meaning given to it by s. 4 of the Act. Reg. v. Burnup, 50 J. P. 598— D. In summary proceedings to recover expenses under s. 150, it is for the justices, having regard to the surrounding circumstances, and to whether there is any intention of building along a road so as to convert it into a street, to find as a fact whether the road in question is a street in the ordinary and popular sense of the word ; and it makes no difference that the section has been applied or may apply to a portion of the road other than that in question. Where the justices- find a road or a portion of a road is not a street in the ordinary and popular sense, they will be right in holding that the section is not applic- able to the road or portion of a road. IT). A private road may be a street within the meaning of s. 150 of the Public Health Act, 1875. Midland Railway v. Watfon, infra. The meaning of " street " in s. 150 of the Public Health Act, 1875, includes such of the terms set out in the interpretation clause (s. 4) as are not inconsistent with the context or sub- ject matter of that section ; and such extended meaning, if so applicable, must be read into the word " street " throughout the section, without regard to the particular work to be done under it. Jowett v. Idle Local Board, 36 W. R..530— C. A. Affirming 57 L. T. 928 ; 36 W. R. 138— D. 853 HEALTH — Poivers and Jurisdiction of Local Boards. 854 Question of Law — Sirection to Jury.] — — The question whether the place in dispute comes within the interpretation clause is one of law for the judge at the trial, and the question which may properly he left to the jury is whether the said place is " a street in the popular accep- tation of the term." lb. — D. Strip of Land added to Highway Re- pairable by Inhabitants at Large.] — Owners of land adjoining a highway repairable by the inhabitants at large, erected houses on their land, and threw open to the highway a strip of land in front of them : — Held, that the houses with the strip of land in front, together formed a " street " within the meaning of s. 150 of the Public Health Act, 1875 (38 & 39 Vict. c. 55), which the urban sanitary authority within whose district it was situate could compel the frontagers to pave, channel, and kerb under the provisions of that section. Ricliards v. Kessich, 57 L. J., M. C. 48 ; 59 L. T. 318 ; 52 J. P. 756— D. " Highway Bepairable by Inhabitants at Large."] — The promoters of an intended road by deed declared that the road should not only be enjoyed by them for their individual purposes, but " should be open to the use of the public at large for all manner of purposes in all respects as a common turnpike road " : — Held, that this was not a dedication of the road to the public, and that the road was not a highway repairable by the inhabitants at large under s. 150 of the Public Health Act, 1875. Awsterberry v. Old- ham Corporation, 29 Ch. D. 750 ; 55 L. J., Ch. 633 ; 58 L. T. 543 ; 33 W. E. 807 ; 49 J. P. 532 — C.A. "Turnpike Bead."] — Semble, an indivi- dual cannot, without legislative authority, dedi- cate a road to the public if he reserves the right to charge tolls for the user ; and the mere fact that a number of persons form themselves into a company for making and maintaining a road, and erect gates and bars and charge tolls, does not make the road a " turnpike road " in the sense of a turnpike road made such by act of parliament, and so dedicated to the public. lb. The owners of a road put up bars upon it and took tolls from the public for the passage of vehicles, horses, and cattle : — Held, that such road was not a turnpike road within the mean- ing of the exception contained in the definition of " street " given by s. 4 of the Public Health Act, 1875. Midland Railway v. Watton, 17 Q. B. D. 30 ; 55 L. J.. M. C. 99 ; 54 L. T. 482 ; 34 W. E. 524 ; 50 J. P. 405— C. A. Power of Local Authority to change Name.] — By s. 6 (1) of the Towns Improvement Clauses Act, 1847, the Commissioners might, from time to time, cause the houses and buildings in all or any of the streets to be marked with numbers, as they might think fit, and should cause to be put up or painted on a conspicuous part of some house, building, or place at or near each end, corner, or entrance of every such street, the name by which such street was to be known. The Corporation of Dublin adopted a resolution that the name of Sackville Street be changed to O'Connell Street, for the purpose of com- memorating by this and other intended altera- tions in street nomenclature the past historical events of the country and the names of illustrious men. The householders of Sackville Street, with very few exceptions, objected to the proposed change in its name on the ground of incon- venience and of detriment to their trades and businesses : — Held, in an action by some of the objecting householders, that the corporation had no power, either by statute or at common law, to make the change, and that even if they possessed such power the court had jurisdiction to restrain them from doing so, if satisfied that the proposed change would be injurious to the owners or occupiers of houses in the street. Anderson v. Dublin Corporation, 15 L. E., Ir. 410-V..G. Liability to Fence Lands abutting on High- way,]— By s. 81 of the Eotherham Borough* Extension and Sewerage Act, 1879, "If the corporation are of opinion that danger to the public is likely to ensue by reason of lands abutting on streets not being fenced, the owner of such land shall, when required by the corpora- tion, and to their satisfaction, sufficiently fence ofE the land from the street, and shall afterwards- keep such fence In good repair to the satisfaction of the corporation, and if he fails so to fence or repair as aforesaid, within fourteen days after notice for that purpose given to him by the corporation, the corporation may fence or repair and recover the expenses for so doing from him under the Public Health Act, 1875 : "—Held, that this act did not apply to fences by the side of a road which had been a turnpike highway, but applies only to new streets where there are no fences, and which, in the opinion of the corpora- tion, are dangerous to the public. Rotlierliam {Mayor") v. FuUerton, 50 L. T. 364— D. Causing Obstruction — Persons walking abreast on Footpath — Annoying Passengers.] — Three defendants were convicted by the defendant justices, under s. 28 of the Towns PoUce Clauses- Act, 1847, for obstructing passengers in the public street, and unlawfully preventing persons passing there. It appeared by the evidence of a police constable that the three defendants were standing, with three or four other persons on the pavement, blocking up the same. Several persons had to leave the footpath and go into the road in order to pass. The constable spoke to the defendants, and asked them to move off. They then walked up the street, all three abreast, causing passengers who met them to leave the footpath and go into the road. Again, later in the evening, the constable saw the three defen- dants walk up and down the street several times. Two ladies were turned ofE the footpath, and one lady said, " I wonder the police do not put a stop to this," but otherwise no complaints were made, and no persons were called to prove that they had been impeded by the defendants, nor could the names of any persons so obstructed be given by the witnesses for the prosecution. S. 28 of the act provides that " Every person who by means of any cart, carriage, sledge, truck, or barrow, or any animal, or other means, wilfully interrupts any public crossing, or wilfully causes any obstruction in any public footpath, or other public thoroughfare," shall be guilty of an ofEence under the act, and liable to a penalty :— - Held, that the conviction was wrong, and could not be sustained. Re//, v. Long, 59 L. T. 33 ; 52 J. P. 630— D. 855 HEALTH — Powers and Jwrisdiction of Local Boards. 866 3. BUILDINGS. Building Line — Rebuilding — Board mislead- ing Owners.] — The defendants being about to pull down a school and erect a new one, sub- mitted plans to the local board. The local board objected to the plans, giving as a reason that they violated a bye-law, which obliged a person laying out a new street to leave it of a certain width. This bye-law was not appli- cable, as South Lane, on which the school fronted, was not a new street. The defendants disregarded the objection, commenced their works on the 5th of January, 1885, laid the foundations of the main wall towards South Lane on the 12th, and proceeded rapidly with the erection of it. On the 22nd of January the local board prescribed a building line which did not interfere with the main wall, but would prevent the erection of certain annexes not then commenced, lying between South Lane and the main wall, which annexes were shown on the plans laid before the board. The defendants had ground enough to allow of the annexes being erected elsewhere. The defendants proceeded with the annexes, and the board brought their action to restrain them from building beyond the line, and to compel them to pull down what they had built beyond it -. — Held, that where a building is taken down to be rebuilt, a building line may be prescribed under s. 155, for any portion of it which has not been commenced, although other portions have been commenced, unless what has been commenced necessarily in- volves as a matter of construction a projection beyond the line afterwards prescribed, and that here no such necessity existed, as the annexes •could be erected elsewhere. That the com- mencement of the main building, therefore, did not preclude the board from laying down a line which would prevent the erection of the annexes which had not then been commenced. Held, also, that as the notice given by the board, though ineffectual for the purpose of em- powering them to pull down the erection under s. 158, gave the defendants to understand that the board objected on the ground that buildings according to the plan would make the street too narrow, the board had not done anything to in- duce the defendants to believe that they would not prescribe a building line, and that there was no equity to prevent the board from exercising their powers under s. 155, on the ground that they had misled the defendants. Newliaven Local Board v. Newliaven School Board, 30 Ch. D. 350 ; 53 L. T. 571 ; 34 W. R. 172 — C. A. ' ' Bringing forward " House — New Buildings on land never before built upon.] — In the Public Health Act, 1875 (38 & 3tf Vict. c. 55), s. 156,— which enacts that it shall not be lawful in any urban district without the written consent of the urban authority to bring forward any house or building forming part of any street, or any part thereof, beyond the front wall of the house or building on either side thereof — the expression "house or building" does nut include new build- ings in course of erection upon land never before built upon. Williains v. Wallasey Local Board, 16 Q. B. D. 718 ; 55 L. J., M. C. 133 ; 55 L. T. 27 ; 34 W. R. 517 ; 50 J. P. 582— D. New Street— Approval of local Authority^- direction of Buildings before whole Street con- structed.] — The Sunderland Local Improvement Act, 1885,' by s. 37 enacts, that it shall not be lawful for any person, except with the consent of the corporation, to erect or build, or begin to erect or build, any new buildings abutting upon any new street or part of a, new street, unless the corporation shall have previously approved of the level and available width of such new street or part of a new street, nor until the carriage way and footway of such new street, or part of a new street, shall have been formed to such a level and of such a width, and con- structed and sewered to the satisfaction of the corporation in accordance with s. 150 of the Public Health Act, 1875. The appel- lants, who were builders, gave notice to the Sunderland local authority, the respondents, of their intention to lay out a certain new street, the plans for the construction of which were approved by the respondents. They subsequently gave notice that the}' intended to erect four new houses in that street, the plans of which were submitted to and approved by the respondents. The appellants began to erect these houses abut- ting upon or fronting that part of the new street which had been sewered, levelled,paved,metalled, flagged, and channelled to the satisfaction of the respondents ; but the whole of the new street had not been constructed and made good to the satis- faction of the respondents within s. 37 of the Sunderland Local Improvement Act, 1885. The appellants were summoned in respect of the in- fringement of that section, and were iined. They appealed : — Held, on appeal, that the conviction was right, and that, as the appellants had given notice to lay out the whole of a new street, the urban authority, under their local act, were entitled to withhold their consent to the erection of any house or building abutting on the new street unless the whole of the new street were constructed and sewered to their satisfaction. Woodhill V. Sunderland {Mayor'), 57 L. T. 303 ; 52 J. P. 5— D. New Building — Wooden Building on 'Wheels.] — R. was charged under the W. Improvement Act with unlawfully erecting a new building without notice to the local board. The building was made of wood, thirty feet long and thirteen feet wide, and was brought along the street on wheels, and put at the corner of a new street. It had spouts and a, down corner, had a supply of gas, and was used as a butcher's shop : — Held, that the justices were right in treating this as a new building, and subject to the ordi- nary requirements as to new buildings. Richard- son V. Brow7i, id J. P. 661 — D. Question of fact— Bye-laws — Penalty.]— Bye-laws were made for the borough of S., under the powers given by s. 34 of the Local Govern- meni Act, 1858. This act was repealed by the Public Health Act, 1875, but by s. 326 of the latter act all bye-laws duly made under any of the sanitary acts by this act repealed, and not inconsistent with any of the provisions of this act, shall be deemed to be bye-laws under that act. The 27th bye-law provided that every person who intended to erect any new building should give one month's notice of such inten- tion, and send in a plan of the works to the surveyor for the urban sanitary authority. The 31st bye-law provided that if the owner or 857 HEALTH — Powers and Jurisdiction of Local Boards, person intending to construct any new building fail to give the required notices, or construct, or cause to be constructed, any buildings contrary to the provisions of any of the said bye-laws, he shall be liable for each offence to a penalty not exceeding &l. ; and he shall pay a further sum not exceeding iOs. for each day such buildings shall continue or remain conti'ary to the said pro- vision. The appellant contended that he was not bound to give notice or send a plan of alterations he proposed to make in his house, as the altera- tions merely consisted in raising the old walls a storey higher, but he sent a plan, as he said, as a matter of courtesy. This plan was disap- proved of, and notice of such disapproval was sent to the appellant, but he went on with the buildings. He was then summoned by the respondent, who was the surveyor for the urban sanitary authority, for neglecting to give notice and send plans as required by the bye-laws. The magistrate found that the structure was in fact a comfortable, good-looking dwelling- house, which previously it was not. He also found, as a fact, that the old building was partly pulled down to the ground floor, and that the buildings erected on the site thereof formed a new building intended for occupation, and that they were not adapted for personal occupa- tion previously, and that they were "a new building" within s. 159 of the Public Health Act, 1875. The appellant was convicted and fined 40s. and costs, and a further sum of 20«. for each day the work should continue or remain contrary to the provisions of the said bye-laws : — Held, that the question whether the altera- tions constituted a "new building " was a ques- tion of fact for the magistrate to decide, and that he had decided as a fact that they did con- stitute a " new building," and that the penalty of 51. was payable in addition to the penalty of 40«. a day, though the information laid against the appellant was only for not having given the notices and plans under the 27th bye-law. James V. WyvUl, 51 L. T. 237 ; 48 J. P. 725— D. See also Reay v. Gateshead (Mayor'), infra. Bye-laws — Validity — Erection before Kerb put in.]'— By s. 157 of the Public Health Act, 1875, every urban authority is empowered to make bye-laws " with respect to the level, width and construction of new streets " : — Held, that the section did not empower the making of a bye- law that " no person shall commence the erec- tion of a building in a new si reet unless and until the kerb of each footpath therein shall have been put in at such level as may be fixed or approved by the urban sanitary authority " Rudland v. Sunderland (Mayor), 52 L. T. 617 ; .S3 W. E. 164 ; 49 J. P. 359— D. Setaining Flans Deposited.] — It is rea- sonable for an urban sanitary authority to make a bye-law and regulations enabling it to retain the plans of intended buildings deposited under the Public Health Act, 1875, although such plans be disapproved of and rejected. Gooding v. Ealing Local Board, 1 C. & E. 359— Mathew, J. Power to Order Eemoval.] — A local board made bye-laws with respect to new streets, by one of which their approval was required for the erection of buildings ; and it was provided that if any works were constructed "contrary to the provisions herein contained," the board might 858 have such works removed, altered, or pulled down : — Held, that the bye-law did not give the board a general power of veto on tbe construc- tion of buildings, but only of disapproving and ordering the removal of buildings which contra- vened specific regulations contained in the bye- laws. Rohvnson v. Barton Local Board, 8 App. Cas. 798 ; 53 L. J., Ch. 226 ; 50 L. T. 57 ; 32 W. E. 249 ; 48 J. P. 276— H. L. (E.) No Approval of Plans — Continuing Penalty— Limitation of Time for Proceedings.] — On the 11th December, 1885, an information was prefeiTed against the appellant for that he, between the 6th March, 1885, and October, 1885, had commenced the execution of works, the plans of which were not in conformity with the bye-laws, and had erected such works notwith- standing the disapproval of the urban sanitary authority, and permitted the same to continue, notwithstanding written notice of such contra- vention of the bye-laws. By bye-law 5, s. 9, " If the person intending to construct new houses shall construct, or cause to be constructed, any works, or do any act, or omit to do any act, or comply with any requirements of the local board, contrary to the provisions herein con- tained, he shall be liable for each offence to a penalty not exceeding 51., and he shall pay a further sum not exceeding 40.s. for each and every day during which such works shall con- tinue or remain contrary to the said provisions." The justices convicted the appellant of the offence, and ordered him to pay the penalty of 51. and costs, and also to pay a further sum of 5s. per day from the 12th of October, 1885, being the day on which the respondent first served a notice of objection, to the 11th December, 1885, being the day on which the said information was laid : — Held, that the conviction could not be sustained, and that the 9th paragraph of the 5th bye-law was bad, because there was no authority to inflict, by a bye-law, a continuing penalty for merely not pulling down a building actually erected and completed. Held, also, that the said bye-law was ultra vires, because, under s. 115 of the Public Health Act, 1848 (11 & 12 Yict. c. 63), a continuing penalty is to run only for each day after written notice of the offence has been given by the local board. The section does not authorise the infliction of a continuing penalty " for each day during which the works shall continue contrary to the pro- visions of the bye-laws." Held, also, that the respondents had not taken proceedings in time, and were barred by s. 11 of Jervis' Act (11 & 12 Vict. c. 43), because the original offence of com- mencing the work was not shown to have been committed within six months of tbe date of the information. The period of limitation men- tioned in s. 158 of the Pubhc Health Act, 1875, applies only to the case of a continuing offence. Reay v. Gateshead (^Mayor), 55 L. T. 92 ; 34 W. E. 682 ; 50 J. P. 805— D. See also James v. Wyvill, supra. Open Space at rear of Dwelling-house- Distance across to opposite Property.] — The L. Improvement Commissioners made a bye-law that every person erecting a new building for a dwelling-house should provide in the rear an open space exclusively belonging thereto, to the extent of at least 150 square feet, and should cause the distance across such open space HEALTH — Powers and Jurisdiction of Local Boards. 859 between every such building and the opposite property at the rear to be at least 20 feet. P. erected a new building to be used as a dwelling- house ; in the rear there was a space exclusively belonging thereto of 700 square feet ; the dis- tance across such open space to the opposite houses was 52 feet, but as P.'s land was bounded by a public street, the distance from the houses of P. to the edge of the street wis only 8 feet :— Held, that on the true construction of the bye- law the public street was the opposite property, and that P. had committed a breach of the bye- law. Jones V. Farry, 57 L. T. i92 ; 52 J. P. 69 —D. Prohibition of use unless fit for Human Habitation, ] — An urban sanitary authority made the following bye-law under the Local Govern- ment Act, 1858 Call bye-laws made under which are deemed to be bye-laws under the Public Health Act, 1875, if not inconsistent with any of the provisions of that act) : "No new house shall be occupied until the house drainage has been made and completed, not until such house has been certified by the local board, or their oiEcer authorised to give such certificate, after examination, to be In every respect fit for human habitation in their or his opinion : " — Held, that the bye-law was reasonable and not inconsistent with any of the provisions of the Public Health Act, 1875, and therefore valid. Sorsell v. Swindon Local Board, 58 L. T. 732 ; 52 J. P. 597— D. Deviation from Plans — Position of Privies.] — B. was charged with erecting new buildings not in accordance with the plans, in so far as the tub-closets were not in the positions shown on the plans. The closets had been erected from 15 to 27 feet distant from main buildings instead of 2 J feet as shown on the plans : — Held, that the justices were right in holding that tub-closets came within the meaning of " privies " in 21 & 22 Vict. c. 98, s. 34, and that it was an offence against bye-laws to deviate from the plans. Surton v. Acton, 51 J. P. 566 — D. i. SEWEES. What are — Watercourse.] — The sevy^age of certain houses drained into a sewer, and, after passing through the sewer, was for a period of some years allowed to fall into an open water- course, which, in its turn, flowed into a brook : — Held, that, under the circumstances of the case, the open watercourse was a sewer within the meaning of s. 4 of the Public Health Act, 1875. Wlwatcroft v. Matlocli Local Board, 52 L. T. 356— Denman, J. The word ' ' sewer " in the Public Health Act, 1875, should receive the largest possible inter- pretation, and a drain is a " sewer " within the meaning of s. 13 when more than one house has been connected with it. Acton Local Board v. Batten, 28 Ch. D. 283 ; 54 L. J., Ch. 251 ; 52 L. T. 17 ; 49 J. P. 357— Kay, J. Vesting in Local Authority — Made "for his own Profit."] — A sewer made by the owner of some only of the houses in a street not yet a highway, though made for the purpose of drain- ing his own amongst other houses, is not a sewer 860 made by a person "for his own profit" vdthin the meaning of the exception in s. 13 of the Public Health Act, 1875. 111. A street having been laid out by the owners of a building estate, a sewer was made by them for the drainage of the houses in the street. Sub^ sequently, in the year 1868, a local board was formed whose district included such street. The sewer, which discharged into the Thames, was sufficient for the purposes of the drainage of the street, assuming that drainage into the Thames could be continued. In 1884 the local board, having received notice from the Thames Conservators to discontinue the discharge of sewage into the Thames, gave notice under s. 150 of the Public Health Act, 1875, to the frontagers in the street to make a new sewer, and on their default themselves constructed such sewer and sought to charge the expenses upon the front- agers : — Held, that the original sewer was not a sewer made by the owners for their own profit, and therefore had vested in the board under the Public Health Act ; that the board not having taken any steps to compel the frontagers to sewer the street within a reasonable time after the sewer became vested in them, must be taken to have been satisfied with the sewer, and could not afterwards proceed against the frontagers under s. 150, but were bound themselves to keep the sewer in repair under s. 15 of the Public Health Act, 1875, and, if it became necessary, to enlarge or alter it under s. 18 ; and that conse- quently the expenses of constructing the new sewer were chargeable not on the frontagers but on the general district rate. Bonella v . Twich- enUam Local Board, 20 Q. B. D. 63 ; 57 L. J., M. G. 1 ; 58 L. T. 299 ; 36 W. K. 50 ; 52 J. P. 356—0. A. Eight of Access to — Compensation.] — The B. improvement commissioners in 1843 constructed a sewer through certain lands belonging to a railway company, and through other lands, not the property of the commissioners, which the company subsequently acquired for the purposes of their railway. Nothing was ever done by the commissioners or their successors to acquire any rights with regard to the sewer beyond its con- struction. Within twenty years &om the con- struction of the sewer the railway company made an embankment for their railway upon the lands and over the sewer. Up to 1879 no repairs had been necessary to the sewer ; but in that year it became necessary for the plaintiffs, the successors of the commissioners, to make an open cutting through the embankment in order to do repairs to the sewers, which could not be effected from the inside. In an action upon an inquisition under the Lands Clauses Consolidation Act, 1845, to assess compensation claimed by the plaintiffs from the defendants, in respect of the injuriously affecting of the sewer by the embankment : — Held, that the plaintiffs had no title or interest at law in the sewer, or in the lands in which it was situate, sufficient to support the claim : — Held, on appeal, that as a right of access to the sewer had not been expressly given to the im- provement commissioners, but had to be implied, the right of access which ought to be implied was not any particular mode of access, but such only as was reasonably necessary for enabling the repair of the sewer to be done, and as that had not been prevented by the defendant's embankment, but only rendered less easy and 861 HEALTH — Powers and Jurisdiction of Local Boards. 862 convenient, the plaintiffs had no right to com- pensation. Birkenhead {Mayor') v. London and North-Western Railway, 15 Q. B. D. 572; 55 L. J., Q. B. 48 ; 50 J. P. 84— C. A. "Works for Sewage purposes."] — The cleaning, levelling, and cementing the bottom of a pool, into which the effluent from sewage works flows, is a work for sewage purposes within the meaning of s. 32 of the Public Health Act, 1875. Wimbledon Local Board v. Croydon Sanitary Authority, 32 Gh. D. 421 ; 56 L. J., Ch. 159 ; 55 L. T. 106—0. A. 5. NUISANCES AND OFFENSIVE TRADES. Chimney sending forth Black Smoke — Fur- nace constructed to consume Smoke.] — By the 7th sub-s. of s. 91 of the Public Health. Act, 1875, "Any fireplace or furnace which does not, so far as practicable, consume the smoke arising from the combustible used therein, and which is used for working engines by steam, or in any mill, factory, dyehouse, brewery, bakehouse, or gas- work, or in any manufacturing or trade process whatsoever ; and any chimney (not being the chimney of a private dwelling-house) sending forth black smoke in such quantity as to be a nuisance, shall be deemed to be a nuisance liable to be dealt with summarily in manner provided by this act : provided that where a person is summoned before any court in respect of a nuisance arising from a fireplace or furnace which does not consume the smoke arising from the combustible used in such fireplace or fur- nace, the court shall hold that no nuisance is created within the meaning of this act, and dismiss the complaint if it is satisfied that such fireplace or furnace is constructed in such man- ner as to consume as far as practicable, having regard to the nature of the manufacture or trade, all smoke arising therefrom, and that such fireplace or furnace has been carefully attended to by the person having the charge thereof." An information was laid against the proprietor of a brewery, for that black smoke was from time to time sent forth from the chim- ney of his brewery in such quantities as to be a nuisance, and he was convicted and fined thereon : — Held, on case stated, that the proviso applied only to the first part of the sub-section, and not to the latter part, making it an offence to send forth black smoke in such a quantity as to be a nuisance, and that the defendant was not entitled to call evidence as to the construc- tion of the furnace. Weekes v. Xing, 53 L. T. 51 ; 49 J. P. 709 ; 15 Cox, 0. 0. 723— D. Kozions or Offensive Trade — Fish-Frying.] — By the 112 th section of the Public Health Act, 1875 (38 & 39 Vict. c. 55), it is provided that any person who, after the passing of this act, establishes within the district of an urban authority, without their consent in writing, any offensive trade, that is to say, the trade of blood- boiler, or bone-boiler, or feUmonger, or soap- boiler, or tallow-melter, or tripe-boiler, or any other noxious or offensive trade, business, or manufacture, shall be liable to a penalty, &c. A ffish-frying business, which is as a fact an offensive business by reason of effluvia arising therefrom and extending to a distance of two or three hundred yards, is not a noxious or offensive business within the meaning of the section, which only applies where a business is necessarily noxious or offensive. Braintree Local Board v. Boytoit, 52 L. T. 99 ; 48 J. P. 582— D. Swine kept near Dwelling-houses — Bye-law.] A rural sanitary authority, purporting to act under the powers of ss. 44 and 276 of the Public Heath Act, 1875, made a bye-law prohibiting the keeping of swine within the distance of fifty feet from any dwelling-house within their dis- trict : — Held, that the bye-law was unreasonable, and therefore bad. JECeap v. Burnley Union, 12 Q. B. D. 617 ; 53 L. J., M. C. 76 ; 32 W. E. 660 ; 48 J. P. 359— D. An urban sanitary authority, under the powers conferred by the Public Health (Ireland) Act, 1878 (41 & 42 Vict. c. 52), made certain bye- laws, one of which was as follows : — No swine shall be kept in any yard within a distance of twenty-one feet from a dwelling-house or public building in which any person may be, or may be intended to be, employed in any manufacture, trade, or business, except with the special per- mission of the sanitary authority : — ^Held, that the bye-law was valid. Lutton v. Boherty, 16 L. R., Ir. 493— Q. B. D. Abatement — Jurisdiction to Order Owner to abate, where Premises leased for Years.]-,- A local authority served the owner of premises with a notice, under s. 94 of the Public Health Act, 1875, requiring him within seven days to abate a nuisance arising from the defective con- struction of a structural convenience, and for that purpose to execute certain specified works. Having failed to comply with the notice, the owner was summoned under s. 95 before a court of summary jurisdiction, and on the hearing it was proved that the premises in question were occupied by a tenant to the owner under a lease for twenty-one years containing the usual cove- nants : — Held, that the owner, even although he could not enter upon the premises and execute the works without the tenant's permission, had " made default " in complying with the requisi- tions of the notice within the meaning of s. 95, and therefore that the justices had jurisdiction to make an order under s. 96, requiring him to abate the nuisance. Parker v. Lige, 17 Q. B. D. 584 ; 55 L. J., M. C. 149 ; 55 L. T. 300 ; 51 J. P. 20— D. Order should specify Work required to be Done.] — -An order of justices made under s. 96 of the Public Health Act, 1875, upon the complaint of a local authority, required the owner of premises to abate within a specified time a nuisance arising from untrapped drains, " and to execute such works and do such things as may be necessary for that purpose, so that the same shall no longer be a nuisance or in- jurious to health": — Held, that this order was bad, because it did not specify what works and things the owner should execute and do for the purpose of abating the nuisance. Beg. v. Wlieatley, 16 Q. B. D. 34 ; 55 L. J., M. C. 11 ; 54 L. T. 680 ; 34 W. R. 257 ; 50 J. P. 424— D. Power to order Specific Works to be done.] — A sanitary authority had served a notice 863 HEALTH — Powers and Jurisdiction of Local Boards. 864 under s. 94 of the Public Health Act, 1875, on the owner of premises to abate a nuisance, and had ordered the owner " to lay down a six-inch glazed stone-ware drain pipe, and to connect it with the main sewer in front of his house": — Held, that the justices had jurisdiction under s. 96 to make the order in that form. Reg. v. Kent InhaMtants, 55 L. J., M. C. 9, n. — D. The respondents, an urban sanitary authority, served, under the provisions of s. 94 of the Public Health Act, 1875, upon the appellant, who was the owner of certain houses within the borough to which respectively were attached privies and ashpits which were a nuisance, a notice requiring him to abate the nuisance, " and for that purpose, to deodorise and fill in the privies, privy vaults, and ashpits, convert the same to proper pan water-closets, and connect them with the main sewer." The notice was not complied with. An order was thereupon made by two justices under the provisions of s. 96 of the Public Health Act, in the terms of the notice : — Held, upon a case stated, that the order was a good order, for that by s. 96 it was left absolutely to the justices to order any works or structural alterations which they in their discretion might think necessary for the abate- ment of the nuisance. Whitaker v. Berly Urlan Sanitary Authority, 55 L. J., M. C. 8 ; 50 J. P. 357— D. A privy openly discharged night-soil and offensive matter on the bank of a river ; the sanitary authority served the owner of the pre- mises with a notice to abate the nuisance, and for that purpose to " remove the present pipes and pan, level the floor under the seat of the privy, and provide a galvanized double-handled pail under the seat, the cover of which said seat to be movable, so that the premises should no longer be a nuisance or injurious to health ; " and the justices at sessions made an order in the terms of the notice : — Held, that they had juris- diction to make the order. Saunders, Mas part/<, (11 Q. B. D. 191), followed, and WhUchvrcli, Ex paiie (6 Q. B. D. 545), distinguished or dis- sented from. Reg.y. Llewellyn. M Q. B. D. 681 ; 55 L. J., M. C. 9, n. ; 33 W. E. 150 ; 49 J. P. 101 — D. Bitcli on Boundary of two Districts.] — A ditch ran along a highway which divided two rural sanitary districts. The ditch was situated in N., but a nuisance was caused in greater part by sewage from premises in W. The W. sanitary authority applied to justices for an order on the N. authority to cleanse the ditch as being in their area : — Held, that the justices were right in ordering W. to cleanse the ditch. Woiurn Union v. Newport Pagnell Union. 51 J. P. 694 — D. Action for Injunction — Bight of Local Authority to Sue — Sanction of Attorney-General.] —The Public Health Act, 1875, enacts in s. 107 that any local authority may, if in their opinion summary proceedings would afford an inadequate remedy, " cause any proceedings to be taken " against any person in any superior court of law or equity to enforce the abatement or prohibi- tion of any nuisance under the act : — Held, that such proceedings must be ordinary proceedings known to the law, and that in the absence of special damage a local authority cannot sue in respect of a public nuisance except vrith the sanction of the attorney-general by action in the nature of an information. Wallafey Local Board v. Graoey, 36 Ch. D. 593 ; 56 L. J., Ch. 739 ; 57 L. T. 51 ; 35 W. K. 694 ; 51 J. P. 740— Stirling, J. 6. LODGING HOUSES. What are.] — A local board made bye-laws requiring registration, &c., from the landlord of a lodging-house, and defined " lodging-house " to mean " a house or part of a house which is let in lodgings or occupied by members of more than one family." B. let four unfurnished rooms of her house to M. and his family : — Held, that the justices were wrong in holding that B. did not come within the meaning of the definition as landlord of a lodging-house. Moots v. Beatirrumt, 51 J. P. 197— D. Besolution to Begfister — ^Eegistration.] — The respondent, having fulfilled the necessary pre- liminaries under s. 78 of the Public Health Act, 1875, applied to be registered as the keeper of a common lodging-house under s. 76, and the local authority passed a resolution that his house should be registered. The clerk did not carry out this resolution, and no formal registration of the respondent or his house was made, and eight months afterwards the local authority resolved that the respondent should not be registered, and two months later prosecuted him for keeping a common lodging-house without being regis- tered. The justices refused to convict : — Held, upon a case stated, that, for the purpose of the act, the resolution of the local authority consti- tuted registration, and that the justices were right in refusing to convict the respondent. Coles V. Fihhens, 52 L. T. 358 ; 49 J. P. 308- D. Cancelling Begistration — Keeping without License,] — K. was duly entered in the register of the B. urban authority as keeper of a common lodging-house. Two months later the inspector reported that it was kept as a house of had repute, and the health committee by resolution withdrew the license and ordered K. to clear out his lodgers in a week, and on his refusal he was charged with keeping the house without being registered : — Held, that the justices were right in dismissing the information, as there was no power to cancel the license except for the reasons set forth in the statute. Blahe v. Kelly, 52 J. P. 263— D. 7. IN OTHER CASES. Carrying Water-mains — " Surveyor," Eeport of.]— Section 54 of the Public Health Act, 1875, provides that where a local authority supply water they shall have the same powers for carry- ing water mains as they have for carrying sewers. Section 16 provides that any local authority may carry any sewer, after giving reasonable notice in writing to the owner or occupier (if on the report of the surveyor it appears necessary), into, through, or under any lands within their district: — Held, that "the surveyor " is the person duly appointed sur- veyor under s. 189, and no other, not even an engineer of the greatest experience whom the 865 HEALTH — Expenses, Payment and Recovery of. local authority may think fit tb consult ; and farther, that "the surveyor" is the person to determine on the necessity, and therefore if he exercise a bonS. fide judgment in the matter, the court will not interfere. Leiois v. Weston Super Mare Local Board, 40 Ch. D. 55 ; 58 L. J., Ch. 39 ; 69 L. T. 769 ; 37 W. E. 121— Stirling, J. Delegation to Police of Bight to Prosecute. ] — A local board acting under an act which em- bodied the provisions of s. 259 of the Public Health Act, 1875, passed a resolution that " in pursuance of the power vested in the board by s. 259 of the Public Health Act, 1875, the super- intendent and the sergeants of the county police, for the time being acting within the district, be authorised as officers of the board to institute and prosecute all such proceedings as may be necessary under the specified clauses of the local act. In an information preferred by the super- intendent of police against the appellant for an offence under the act : — Held, that the local board had no power under s. 259 of the Public Health Act, 1875, to delegate the prosecution to the police, who are not officers of the board, nor under their control. Kyle v. Barior, 58 L. T. 229 ; 52 J. P. 501, 725 ; 16 Cox, C. C. 378— D. Stopping up Highways — Employment of Soli- citor.] — The U. Land Company being desirous of diverting certain public footways on their estate in the parish of T., requested the T. Local Board of Health to assent to such diversion, and to take the necessary steps to have the said footways closed. The T. Local Board assented, and instructed their solicitors to take the neces- sary steps, and this having been done, paid their bill of costs, and recovered the amount sum- marily as "expenses" within the meaning of s. 84 of the Act of 1835 : — Held, on a case stated, that the words of s. 144 of the Public Health Act, 1875, " may be done by or to the surveyor of the urban authority, or by or to such other person, as they may appoint," did not empower the local board to employ a solicitor to do the ministerial acts in question, and that therefore the solicitor's charges were not "expenses" payable by the land company under s. 84 of the Act of 1835. United Land Company v. Tottenham, Local Board, 51 L. T. 364 ; 48 J. P. 726— D. Promoting Bill in Parliament.] — A rural sanitary authority has no power to charge the rates with the expenses of promoting a bill in Parliament. Cleverton v. St. Germain^s Union, 86 L. J., Q. B. 83— Stephen, J. A rural sanitary authority, being unable to acquire by purchase land and water rights neces- sary for the purpose of procuring a water supply for their district, which it was the duty of the authority to do under the Public Health Act, instructed their solicitor to promote a bill in Parliament for the purpose of obtaining powers to purchase the land and water rights compul- sorily : — Held, that the rural sanitary authority had no power to promote such a bill, and that therefore their solicitor could not recover his costs from them. li. Begister of Owners and Proxies — Poll.] — The town council of a borough is not bound, under the Public Health Act, 1875, sched. II. r. 19, to keep a register of owners and proxies for the purpose of taking a poll in the borough with 866 respect to the application, under 35 & 36 Vict. c. 91, of the borough funds in opposing local and personal bills in parliament. Ward v. Sheffield QMayoi-}, 19 Q. B. D.' 22 ; 56 L. J., Q. B. 418— Cave, J. IIL EXPENSES — PAYMENT AND RECOVERY OF. Who liable — Vendor or Purchaser.] — Lease- hold houses in an urban district, abutting partly on a private road, were sold on an open con- tract ; at the date of the sale works had been done by the local board of the district on the road under s. 150 of the Public Health Act, 1875 ; the final demand for payment of the sum appor- tioned in respect of the premises was served after the purchase ought to have been com- pleted : — Held, that the apportioned expenses became a charge on the premises at the date of completion, and as between the vendor and purchaser were payable by the vendor. Bettes- worth and Richer, In re, 37 Ch. D. 535 ; 57 L. J., Ch. 749 ; 58 L. T. 796 ; 36 W. R. 544 ; 52 J. P. 740— North, J. — — Landlord or Tenant.] — A lessee cove- nanted to pay the tithe or rent charges in lieu of tithes and tax (if any), sewers' rates, main drainage rates, and all other taxes, rates, and assessments, and impositions and outgoings whatsoever then or thereafter to be charged or imposed on or in respect of the said premises or any part thereof : — ^Held, that the lessee was not liable to pay the amount charged by the urban authority for sewering, levelling, and paving the road on which the demised premises abutted, under s. 150 of the Public Health Act, 1875. Hill V. Edward, 1 C. & E. 481— Mathew, J. " Owner " — Agent for collection of Rents.] — By ss. 98 and 99 of the St. Helen's Improve- ment Act, 1869 (32 & 33 Vict. c. 120), the corpo- ration of St. Helen's are, upon failure of the owners of property fronting on a new street to drain, pave, &c., the roadway and paths pur- suant to an order, empowered to do the work themselves, and to charge the expenses thereby incurred upon such owners in proportion to their respective frontages ; and by the interpre- tation clause, s. 4, " owner " is declared to mean "the person for the time being receiving the rack-rent of the lands in connexion with which the said word is used, whether on his own account or under or by virtue of any mortgage or charge, or as agent or trustee for any other person, . . . and shall include every successive owner from time to time of such land for any part of the time during which the enactment wherein that term is used operates in relation to such land " : — Held, that an " agent " employed to collect the rents of the property charged by the apportionment is an " owner " within the act, and is liable to be called upon to pjiy, whether he has money of his principal in hand or not, at any time whilst the sum assessed upon the premises remains unpaid. St. Helen's iMayor) v. Kirhham, 16 Q. B. D. 403 ; 34 W. R. 440 ; 50 J. P. 647— Lopes, J. " Successive Owners " — Mortgagee in Possession — Right to Sue— Concurrent Beme- dieB.l— In 1879 the owner of premises abutting J F F 867 HEALTH — Expenses, Payment and Recovery of. 868 on H. street and E. street, Blackburn, mortgaged them to the defendant. In 1880 the plaintiffs, the Corporation of Blackburn, paved H. street. In 1881 the mortgagor, in accordance with the provisions of the Blackburn Improvement Act, 1870, executed a charge on the premises in favour of the corporation, for the payment by instalments of Ms-apportionment of the expenses thereof. In 1882, and prior to the commence- ment of the operation of the Blackburn Improve- ment Act, 1882, the corporation paved B. street, and in 1883 the mortgagor further charged the premises, in accordance with the provisions of the Blackburn Improvement Act, 1882, with the payment by instalments of the expenses thereof. The mortgagor made default in payment of the instalments. On the death of the mortgagor in 1883 the defendant took possession of the pre- mises under his mortgage. In an action by the corporation against the mortgagee to recover the unpaid instalments under s. 247 of the Blackburn Improvement Act, 1882, which en- titles the corporation to institute an action at law against "successive owners" of premises, for the recovery of the expenses of paving streets abutting thereon : — Held, that the defendant being mortgagee in possession, was a "successive ovyner " within the meaning of s. 247 ; and that the execution of a charge in favour of the corpo- ration did not preclude them from the remedy of action at law to recover the expenses ; and that the Act of 1882 was applicable to the re- covery of expenses incurred prior to the com- mencement of the operation of that act. Blach- burn Corporation v. MioJUetAwait, 54 L. T. 589 ; 50 J. P. 550— D. Premises " fronting, adjoining, or abut- ting."] — A. B. owned plots of land and cottages thereon, separated from a street by a wall five feet high, which belonged with the land on which it stood to another person. There was a public footway which went between the plots of land, and through an opening in the wall into the middle of the street. The backs only of the cottages fronted the street, and the only way for vehicles from the cottages to the street was by a small roadway, which, without touching that part of the street which had been paved, came into a highway which joined one end of such street. With the exception of the public foot- way this roadway was the only access from the cottages to the street : — Held, that A. B. was not the owner of premises " fronting, adjoining, or abutting " on the street within the meaning of s. 150 of the Public Health Act, 1875, and therefore was not liable to contribute to the expenses of sewering and paving the street under that section. Zightbound v. Beiington Local Board, 16 Q. B. D. 577 ; 55 L. J., M. C. 94 ; 53 L. T. 812 ; 34 W. E. 219 ; 50 J. P. 500— C. A. Summary Proceedings — Bight to dispute Lia- bility before Justices.] — In proceedings before justices under the Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 150, to recover from an owner of premises fronting a road his proportion of expenses incurred by the local authority in sewering, levelling, and paving it, the owner may dispute his liability by showing that the road is not a "street," or that it is a "highway repairable by the inhabitants at large." Mccles V. Wirral Sanitary Authority, 17 Q. B. D. 107 ; 55 L. J., M. C. 106 ; 34 "W. E. 412 ; 50 J. P. 596 — D. Apportionment of Expenses — When ooncln- sive. ] — Where the apportionment of street im- provement expenses by the surveyor under s. 150 of the Public Health Act, 1875, has not been disputed by a frontager in the manner pointed out by s. 257 of the act, such apportion- ment is conclusive, and the frontager cannot set up, as a defence to proceedings for the recovery of the sum apportioned, that he has been charged in respect of a greater extent of frontage than he possesses. Midland Railway v. Watton, 17 Q. B. D. 30 ; 55 L. J., M. C. 99 ; 54 L. T. 482 ; 34 W. E. 524 ; 50 J. P. 405— C. A. Notice to Pave — Alteration in Work done- Validity of Notice.]— Under s. 150 of the Public Health Act, 1875 (38 & 39 Vict. c. 55), an urban sanitary authority gave notice to the owner of premises to pave part of a street upon which his premises abutted, specifying the materials and mode and (inter alia) requiring him to lay down concrete. The owner having failed to comply, the sanitary authority did the work themselves, but finding that the concrete would be an un- necessary expense, omitted it : — Held, that the omission to follow strictly the terms of their own notice did not prevent the sanitary autho- rity from recovering from the owner his propor- tion of the expenses incurred. Acton Local Board v. Lewsey, 11 App. Gas. 93 ; 55 L. J., Q. B. 404 ; 54 L. T. 657 ; 34 W. E. 745 ; 50 J. P. 708— H. L. (E.). The S. urban sanitary authority gave notice to K., an owner of laud adjoining a new street, to sewer the road and lay an 18-inch pipe. K. having neglected to do so, the authority in course of carrying out the work, found a 12-inch pipe suflBcient, and used it, and it saved expense to K. on the apportionment : — Held, that the magistrate was right in holding that the appor- tioned expenses of the altered work were re- coverable under s. 150 of the Public Health Act, 1875, the alteration being not a material matter nor invalidating the notice. Kershaw v. Slieffield (^Corporation), 51 J. P. 759— D. Omission of Notice to Frontagers — Charge on Lands — Waiver of Notice.] — ^The plaintiffs incurred expenses in paving a street without having served on the defendants, who were frontagers, a notice under s. 69 of the Public Health Act, 1848 (to which s. 150 of the Public Health Act, 1875, now corresponds), requiring them to do the work themselves. The plaintiffs claimed in an action a declaration that the expenses were a charge on the defendant's pro- perty, under s. 62 of the Local Government Act, 1858 (to which s. 257 of the Public Health Act, 1875, corresponds). It was proved that B., a predecessor in title of the defendants, had taken from the plaintiffs a receipt for a payment in respect of the same expenses : — Held, that the plaintiffs were not entitled to a declaration, inasmuch as the service of the notice under s. 69 was a condition precedent to liability on the part of the defendants in respect of the expenses, and that the payment by B. could not operate as a waiver of the omission to give the notice. Fariir worth Local Board v. Compton, 34 W. K. 334 — C.A. 869 KEAIjTH— Rates. 870 Eoad "made good" and afterwards Paved— " Theretofore."]— In 1857 a local act was passed which incorporated s. 53 of the Towns Improve- ment Clauses Act, 1847 (10 & 11 Vict. c. 34). In 1874 the appellants, in their capacity as the cor- poration of P., bought some land of the respon- dents abutting upon a country high road within the district to which the local act applied, and in pursuance of an agreement then made with the respondents, at their own expense widened and improved the road and laid out a footpath along the side, and gravelled, channelled, and kerbed the footpath. In 1879 the appellants, in their capacity as the urban authority, paved and flagged the footpath and sought to recover the expense of so doing from the respondents as adjoining owners under the powers of s. 53. The jury found that before the paving and flagging in 1879 the road was not a street in the popular sense of the term, and that the footpath had been " made good " within s. 53 : — Held, that the respondents were not liable, upon the ground that the footpath had been " theretofore made good " within the meaning of s. 53, but vrithout deciding whether the road was a " street " within the meaning of that section. The word " theretofore " in s. 58 refers to the period before the work is done by the commis- sioners, not to the period before the passing of the special act. Portsmouth (Mayor") v. Smith, 10 App. Cas. 364 ; 54 L. J., Q. B. 473 ; 53 L. T. 394 ; 49 J. P. 676— H. L. (E.). liability where Contract over £50 not under Seal.] — In an action by a local authority to recover from the defendant his proportion of the cost of sewering, paving, &c., a street under the powers of the Public Health Act, 1875, s. 150, it appeared that part of the work, to an amount exceeding 50Z., had been done by contractors employed by the local authority, but that no written contract under the common seal of the authority had been made with them as provided by s. 174 : — Held, that the defendant was never- theless liable. By A. L. Smith, J., that the objection, if valid, would have been an objection to the apportionment, which could only be raised in the time and manner provided by s. 257. Bournemouth Commissioners v. Watts, 14 Q. B. D. 87 ; 54 L. J., Q. B. 93 ; 51 L. T. 823 ; .33 "VV. R. 280 ; 49 J. P. 102— D. Limitation of Time — ^Alternative Bemedy in County Court.] — The Leeds Improvement Act, 1877, s. 96, provided that summary proceedings before justices for the recovery of expenses must be brought within one year. Section 109 pro- vided that when any person neglected to pay any sum due to the corporation, such sum might be recovered in any court of competent jurisdic- tion for the recovery of debts of the like amount. Other remedies were given for the recovery of these sums, one by an act of 1842, by way of distress, in which there was no limit of time, and another by an act of 1866, by way of action at law : — Held, that the limitation of one year did not apply to proceedings by way of action of debt in the county court. Tottenham Local Board v. Howell (1 Ex. D. 514) distinguished. Zeeds {Mayor) v. Rohshaw, 51 J. P. 441 — D. Erroneous Notice — Fresh Apportionment — Charge on Premises.] — An urban sanitary autho- rity, acting under s. 150 of the Public Health Act, 1875, served the defendant and other fronta- gers of a new street with notices requiring them to execute certain works, including a particular work which could not legally be included in such notices. The notices not being complied with, the urban authority did the works and apportioned the expenses incurred by them in so doing on the frontagers. A summons to recover fi'om the defendant the sum of 650Z., the amount charged to him under the apportionment, having been dismissed by the magistrates, the urban authority made a second apportionment, deduct- ing the expense of the work which had been wrongly included, the amount charged to the defendant therein being 579^. They then brought an action under s. 257 of the Public Health Act to establish a charge on the defendant's premises for 579?., or in the alternative, for 650Z. : — Held, that the urban authority had power to make a second apportionment ; and that, notwithstand- ing the dismissal of the summons, they were entitled to a charge on the premises for 579Z. Manchester (Mayor) v. Hampson, 35 W. E. 334 — D. See S. C. in C. A., 35 W. E. 691. Part of Works executed on Street — Part on Land of Private Owners — Appeal to Local Government Board.] — Upon the hearing of a complaint preferred before a police magistrate by the urban authority of the district, acting under s. 150 of the Public Health Act, 1875, to recover the amount apportioned upon a frontager in respect Of expenses incurred by the urban authority in sewering, &c., a street, the frontager objected that the plans referred to in the notice requiring him to execute the work, showed that part of the work in respect of which, upon his failure to comply with the notice, the expenses were incurred, was executed upon land belong- ing to private owners : — Held, that as part of the work was executed on a street, the urban autho- rity had power to fix the sum to be apportioned, and the magistrate had jurisdiction to entertain the complaint, and could only make an order for payment of the apportioned sum, and if the frontager was aggrieved by what the urban authority had done, his only remedy was to appeal to the Local Government Board under s. 268 of the Public Health Act, 1875. Wake v. Sheffield (Mayor), or Meg. v. Sheffield (Re- corder), 12 Q. B. D. 142 ; 53 L. J., M. C. 1 ; 50 L. T. 76 ; 32 W. E. 82 ; 48 J. P. 197— G. A. Whether payable by Owners or out of District Bate.] — See ante, col. 860. IV. BATES. Property Liable — "Land used as Market Gardens or Nursery Grounds."] — By the Public Health Act, 1875 (38. & 39 Vict. c. 55), s. 211, sub-s, 1 (V), " the occupier of any land used as ... . market gardens or nursery grounds . . . . shall be assessed in respect of the same in the proportion of one-fourtli part only of the net annual value thereof." The appellant, a market-gardener and nurseryman, was the occu- pier of a piece of land upon which were built sixteen greenhouses or glasshouses, which prac- tically covered the surface of the land : they were built on brick foundations, and were used by the appellant for the purpose of growing fruit and vegetables for sale in the course of his busi- F F 2 871 HEALTH— Eafes. 872 ness : — Held, that tbe land with the greenhouaes upon it constituted a market garden or nursery ground within the meaning of the act, and that the appellant was liable to be rated to the general district rate in the proportion of one-fourth part only of the net annual value of the property. Purser v. Worthing Local Soard, 18 Q. B. D. 818 ; 56 L. J., M. C. 78 ; 35 VV. E. 682 ; 51 J. P. 596— C. A. " Public Charity," House used for Pur- poses of — Exemption.] — By » Local Improve- ment Act, 6 Geo. 4, c. 132, d. 103, the commis- sioners of d, town were authorised to make district rates for defraying the expenses of the Act, provided that none , of the rates or assess- ments which should be made by virtue of this act should be laid upon or in respect of " any houses or buildings used and occupied exclusively for the purposes of public charity " : — Held, that an orphanage founded and used for the purpose of boarding, lodging, clothing, and educating the children of deceased railway servants, and supported partly by subscriptions from railway servants, but mainly by donations from the public, was open to such an extensive class of the community of the kingdom that the pre- mises were used and occupied exclusively for the purposes of " public charity," within the proviso of the act, and therefore exempt from rateability under it. Hall v. Derhy Sanitary Authority, 16 Q. B. D. 163 ; 55 L. J., M. C. 21 ; .-.4 L. T. 175 ; -50 J. P. 278-D. Borough Bates — Limitation of Amount by Local Act.] — By the St. Helen's Improve- ment Act, it is provided that no borough rate levied thereunder shall exceed in any year the sum of Is. in the pound, provided that, with the consent of a majority of the persons liable to be rated thereto, the corporation may increase such rate above the amount by the act limited. The act further provides that no such increase shall be leviable upon the owner or occupier of any coal mine in respect thereof, or upon any person assessable in the proportion of one-fourth only of any rate, other than the highway rate, in respect of his property or of premises occupied by him : — Held, that this was not an exemption of property from rateability, but a limit im- posed upon the borough rate leviable upon colliery, &c., property ; and that, though the limit still exists so far as any rate leviable by the corporation for borough purposes is concerned, a. 227 of the Public Health Act, 1875, prevents its applying to rates leviable by the corporation for the purposes of the act, and that tbe cor- poration are unrestricted in the amount of any rate leviable by them thereunder. St. Helen's Corporation v. St. Helen's Colliery Company, 48 J. P. 39— D. Joint Board— Component Districts — Expenses of carrying out Provisional Order — Apportion- ment.] — A provisional order of the Local Govern- ment Board, confirmed by a local act, provided that the expenses incurred by the joint board for the district should be defrayed out of a common fund, to be contributed by the component dis- tricts in manner provided by s. 283 of the Public Health Act, 1875, and that the contributions of certain of the component districts should be con- tributed and raised as if they were required to defray " special expenses " within the mean- ing of the Public Health Act, 1875 :— Held, on a special case, that the joint board should appor- tion the contributions of the component districts according to the rateable values of the properties in such districts, to be ascertained according to the valuation list, and that the rateable values of tithes, tithe commutation rent-charges, land used as arable, meadow or pasture ground only, or as woodlands, market gardens, or nursery- grounds, or covered with water, or used as a canal or tovring path, or as a railway, should be taken at the full value appearing in the valua- tion list, and not at one-fourth thereof. Darenth Main Valley Sewerage Board v. Dartford Union, 19 Q. B. D. 270 ; 56 L. .1., Q. B. 615 ; 57 L. T. 233 ; 36 W. R. 43— D. Eetrospeetive rate — Balance of past Debt.]— A retrospective rate is, as a rule, bad, whether made to meet expenses incurred in constructing and cleaning sewers, or in the relief of the poor. A rate made in 1885 for sewerage work done under the Public Health Act of 1872 held bad. Swid V. Wigton Sanitary AiUJiority, 56 L. T. 438 ; 35 W. E. 252 ; 51 J. P. 406— D. Jurisdiction of Justices — On Hortgagor — Mortgagee in Possession.] — The E. improvement commissioners made a rate in 1876 on P. the owner, for improvement expenses, and he paid part thereof and died, having, at the date of the rate, executed a mortgage to B. B. entered into possession in 1882, and in 1885 the justices issued a distress warrant against B. for the unpaid rate made on P. : — Held, that the justices had no power to issue a distress warrant against B., who was not named in the rate. Rochdale Building Society v. Rochdale (^Mayor"), 51 J. P. 134 — D. Sufficient Cause for Non-Payment.] — A district rate, based on a new valuation list duly approved by the assessment committee, was levied on the property of the appellants by the respondents under the powers of s. 211 of the Public Health Act, 1875. Subsequently the appellants obtained from the assessment com- mittee a reduction in the valuation ; but being still dissatisfied with the amount, they gave notice of appeal to quarter sessions. Pending the hearing of the appeal the respondents took out a summons under s. 256 of the Public Health Act, 1875, calling on the appellants to show cause why the rate should not be paid : — Held, that the rate being based on a valuation which had been admitted by the assessment committee to be excessive, there was sufficient cause for non-payment of the rate within the meaning of s. 256. Sheffield Waterwnrhs Company v. Sheffield {Mayor-), 55 L. J., M. C. 40 ; 54 L. T. 179 ; 34 W. E. 153 ; 50 J. P. 6— D. On an application before justices for an order for payment of a rate under s. 265 of the Public Health Act, 1875, the rate being good on the face of it, and the property in respect of which the occupier is rated being within the district of the rating authority, the justices' duty is merely ministerial, and they have no jurisdiction to inquire into the validity of the rate. Beg. v. Hannam, 34 W. E. 355— C. A. On an application under s. 256 of the Public Health Act, 1875, to enforce a general district rate, good on the face of it, the justices may not refuse to make an order for payment of the rate on the ground that there is a concurrent 873 HEALTH— Arbitration. 874 rate made for the same purpose. Sandgate Local Board v. Pledge, 14 Q. B. D. 730 ; 52 L. T. 546 ; 33 W. E. 565 ; 49 J. P. 342— D. Stating Special Case.]— A special case may be stated by justices under the 33rd section of the Summary J arisdiction Act, 1879, upon an application to epforce payment of a general district rate under the 256th section of the Public Health Act, 1875. Ih. Bankruptcy — Preferential Claim.] — On 12th Jan., 1887, at the time of filing his petition the bankrupt was tenant of a house under a lease for twenty-one years. The trustee in bankruptcy did not disclaim, but on the 1st Feb., 1887, he sold his interest in the lease, the bankrupt re- maining in occupation as tenant under the pur- chaser. There was due from the bankrupt at the date of the receiving order, a local board rate made on 8th October, 1886, for the half year from the 30th September, 1886, to 25th March, 1887, and payable in advance : — Held, that the estate of the bankrupt was liable to pay the rate for the whole half-year. Ystrad- fodwg Local Board. Ex parte. Thomas, In re, 57 L. J., Q. B. 39 ; 58 L. T. 113 ; 36 W. K. 143 ; 4 M. B. E. 295— Cave, J. V. AEBITRATION. Appointment of Arbitrators invalid — Their i.ppointment of Umpire.] — The Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 180, enacts that "With respect to arbitrations under this ait, the following regulations shall be observed : (I) Every appointment of an arbitrator under tliis act when made on behalf of the local authority shall be under their common seal, and on behalf of any other party under his hand . . ." " (2) Every such appointment shall be delivered to the arbitrators, and shall be deemed a submis- sion to arbitration by the parties making the same." In an arbitration under the act one arbitrator was appointed by the local authority under their common seal, and another arbitrator was appointed by the claimant, butnotin writing under his hand. The arbitrators disagreed and appointed an umpire who made an award in favour of the claimant : — Held, that the pro- visions of the statute not having been complied with, the appointment of the arbitrators and consequently their appointment of the umpire, and his award were invalid, and neither the original submission nor the appointment of the umpire nor the award could be made an order of court. Oifford and Bury Town Council, In re, 20 Q. B. D. 368 ; 57 L. J., Q. B. 181 ; 58 L. T. 522 ; 36 W. E. 468 ; 52 J. P. 119— D. Jurisdiction of Arbitrator when Liability is disputed.] — When a claim for compensation is made against a local authority for damage caused by the exercise of the powers conferred upon them by the Public Health Act, 1875, the arbitrator has jurisdiction to hold the arbitration and make his award as to the fact of damage, and the amount of compensation under ss. 179, 180, 308, although the local authority bong, fide dispute their liability to make compensation at all under the act. Their proper course is to raise the question of liability in their defence to an action upon the award, Brierley Hill Local Board v. Pearsall, 9 App. Gas. 595 ; 54 L. J., Q. B. 25 ; 51 L. T. 577 ; 33 W. E, 56 ; 49 J. P. 84— H, L. (E.). Power to enlarge Time for making Award.] — The court cannot enlarge the time for making an award under the Public Health Act, 1875 (38 & 39 Vict. e. 55), beyond the period limited in s. 180, MacTienzie and Ascot Gas Company, In re, 17 Q, B. D. 114 ; 55 L. J., Q. B. 309 ; 34 W. E. 487 -D. Award referred back to Deal with Costs.] — An arbitrator or umpire appointed to determine a dispute under ss. 179 and 180 of the Public Health Act, 1875, must in his award deal with the costs of and consequent upon the reference, which are placed in his discretion by sub-s. 13 of the latter section, and if he fails to do so the court will remit the award to him for the purpose of determining the question of costs. Pcake V, Fincliley Local Board, 57 L, T. 882 — D. Taxation of Costs.] — Two local authorities, whose districts were adjacent, agreed to carry out a joint sewerage scheme by an agreement, in which it was stipulated that all disputes as to the matters comprised therein should be settled by arbitration in the manner provided by sections 179 and 180 of the Public Health Act, 1875. An award was made which provided that one of the authorities should pay to the other the costs of the reference and award, without stating the amount of such costs. Upon motion for an order directing the taxation of the costs : — Held, that as the submission to arbitration had been made a rule of court, the taxing-master was bound to tax the costs upon the application of the successful party, and that it was not obligatory to bring an action upon the award in order to enable him to do so. Chesterfield Corporation and Brampton Local Board, In re, 50 J. P. 824— D. Enforcing Award.] — An award of an umpire appointed under the 180th section of the Public Health Act, 1875 (38 & 39 Vict. c. 55), awarding compensation for damage to land under the 308th section of the act, cannot, although duly made a rule of court under the 180th section, be enforced by motion in the manner in which awards are ordinarily enforced. Walher and Beehenham Local Board, In re, 50 L. T. 207 ; 48 J. P. 264— D. When Compensation the appropriate Bemedy.] — iSee Sellers v. Matlock Bath Local Board, post, col. 878. VI. CONTKACTS BY AND WITH LOCAL BOABDS. 1. IN GENERAL. Amount exceeding £50 not under Seal — Con- firmation under Seal before Completion.] — It is competent for an urban authority, honestly and for the advantage of their district, to confirm under their seal a previous contract not under seal for an amount exceeding 501. before such contract is completely executed, so as to render the contract valid within s. 174 of the Public Health Act, 1875. Melliss v. Shirley Local 875 HEALTH — Contracts by and with Local Boards. 876 Board, 14 Q. B. D. 911 ; 54 L. J., Q. B. 408 ; 52 L. T. 544— Cave, J. See S. C. in C. A., infra. Amount uncertain at Time of Contract.] — A contract not under seal, made by an urban authority, whereof the value or amount in fact exceeds 501., is invalid by reason of s. 174 of the Public Health Act, 1875, notv^ithstanding that at the time of entering into the contract it was uncertain what would be the value or amount of the contract when executed. JSaton v. BasTier (7 Q. B. D. 529) distinguished. li. Effect of, on Liability for Expenses.] — See Bournemouth Commissioners v. Watts, ante, col. 869. Contract by Board binding Successors — Im- provident Bargain — Change of Circumstances.] —Under the Public Health Act, 1848, s. 48, the owner of land adjoining a district by deed agreed with the local board to do certain works and pay Wl. a year, and the board gave him leave to drain through their drain all sewage from the property and houses then belonging to the landowner, and from any houses thereafter to be erected on the property. Many more houses were afterwards erected, and the urban sanitary authority (which had succeeded the local board) were, under a new act of parliament, prevented from ■ passing as before the sewage through the drain into the Thames : — Held, that the deed was not ultra vires, and that the board could bind their suc- cessors as to the sewage of houses not then in existence. Kew Windsor QMayor) v. Stovell, 27 Ch. D. 665 ; 54 L. J., Ch. 113 ; 51 L. T. 626 ; 33 W. E. 223— North, J. Held, that though the board were trustees for the ratepayers, they had exercised their discre- tion, and the agreement did not appear at the time improvident, and its turning out badly for them did not affect it : — Held also, that the law being altered so as to prevent the discharge of sewage into the Thames was no ground for setting aside the deed. II. Illegality — Contract with Local Authority by Officer or Servant.]— S. 193 of the Public Health Act, 1875, provides that officers or servants em- ployed by a local authority shall not in anywise be concerned or interested in any contract with such authority for any of the purposes of the Act, and that, if any such officer or servant is so concerned or interested, he shall be incapable of afterwards holding or continuing in any office or employment under the act, and shall forfeit the sum of 507. : — Held, that the effect of this section is to render such a contract illegal, and to pre- vent an officer or servant of a local authority from suing on the contract. Melliss v. SMvlmj Zocal Board, 16 Q. B. D. 446 ; 55 L. J., Q. B. 148 ; 53 L. T. 810 ; 34 W. E. 187 ; 50 J. P. 214 — C. A. Semble, that if, after the making of a contract with a local authority, an officer of the authority became interested in it, s. 193 would not avoid the contract. lb. 2. LIABILITY OF OFFICEES FOE PENALTIES. " Interested in Bargain or Contract" — Demise of Booms to Local Board — "Allowance."] — A demise of rooms is a "bargain or contract" within the meaning, of s. 193 of the Public Health Act, 1875, and if an officer, employed by a local board constituted under that statute, lets rooms to the board at a rent payable by it to him, although the rooms are used by it in the transaction of its business, he becomes liable to the penalty imposed by that section ; for the rent payable by the local board cannot be con- sidered as an " allowance " to the officer in addition to his salary within the meaning of ss. 189, 193, it being unconnected with the per- formance of any services in the course of his employment under the board. Burgess v.ClarJi, 14 Q. B. D. 735 ; 33 W. E. 269 ; 49 J. P. 388— C. A. But see 48 & 49 Vict. c. 53. Shareholder in Company — Contract be- tween Company and Local Board.] — An officer of a local board, who is a shareholder in a company having a contract with the board, is, so long as the contract exists, " interested in a bargain or contract " vrith the board within the meaning of the Public Health Act, 1875, s. 193, and if the contract is capable of producing any profit to the shareholders of the company, he is liable to the penalty imposed by that enactment. Todd V. BoUnson, 14 Q. B. D. 739 ; 54 L. J., Q. B. 47 ; 52 L. T. 120 ; 49 J. P. 278— C. A. But see 48 & 49 Vict. c. 53. Percentage payable by Contractor.] — By the terms of contracts entered into with a local authority for the purpose of the Public Health Act, 1875, the surveyor to the local authority was to receive from the contractors, in respect of TjUIs of quantities to be prepared by him, percentages on the amounts he should certify to be due to such contractors respectively by the local autho- rity : — Held, that in respect of each contract the surveyor was liable to a penalty as having been " concerned or interested " therein within the meaning of s. 193 of the Public Health Act, 1875. WUteley v. Barley, 21 Q. B. D. 154 ; 57 L. J., Q. B. 643 ; 60 L. T. 86 ; 36 W. E. 823 ; 52 J. P. 595— C. A. Allowance in Addition to Salary.] — ^A local authority employed their surveyor, apart from his ordinary duties, to superintend the con- struction of certain drainage works as their engineer, and agreed to remunerate him by a percentage on the outlay : — Held, that the surveyor was liable to the penalty imposed by s. 193 of the Public Health Act, 1875. li. Sec- Burgess V. Clark, supra. Acceptance of Fee under Colour of O&DS —Extra Work.]— The defendant, a solicitor, was town clerk of Bury St. Edmunds, and on the town council becoming the local sanitary authority was appointed clerk to the sanitary authority. By a resolution of the town councU dated the 6th May, 1879, his salary was paid at 365?. per annum, including all legal charges, except for contentious matters, travelling expenses, and expenses out of pocket. About 1883 large sewage works were promoted, and subsequently carried out by the town council as the local sanitary authority, which works were carried on for three years and a quarter. During that time the de- fendant, as such town clerk and officer of the sanitary authority, drew his annual salary of 365?., but was engaged in conducting the extra 877 HEALTH — Actions and Proceedings against Local Boards. 878 legal work caused by the carrying through of the sewage scheme, which was opposed by some members of the town council and of the in- habitants. In December, 1887, on the recom- mendation of the sewage and irrigation com- mittee, the town council resolved that the defendant be paid the sum of 500 guineas in addition to his salary of 3651. for his services in providing mortgages, contracts, attending and conducting an inquiry before the Local Govern- ment Board inspector, and other work as a solicitor, and the defendant was paid the said sum. The plaintiff brought his action to recover the statutory penalty of 501. against the defen- dant for having, under the colour of his office, or appointment as officer of the urban sanitary authority, accepted such fee of 5251. contraiy to the provisions of s. 193 of the Public Health Act, 1875 : — Held, that under the circumstances of the case the acceptance by the defendant of the sum of 525Z. was not an acceptance under the colour of his office or employment of a fee or reward other than his proper salary, wages, or allowances, vrithin the meaning of s. 193 of the Public Health Act, 1875. Edwards v. Salmon, 59 L. T. 416— Pollock, B. Affirmed 33 S. J. 630 — C. A. Bemission of Penalties.] — Under 22 Yiot. c. 32 — ^which enables the Crown to remit penalties imposed by statute on convicted offenders — ^there is no power to remit the penalty to which the officers of local authorities are liable under s. 193 of the Public Health Act, 1875, for being interested in any contract made with such loc^ authorities. Todd v. Mobinson, 12 Q. B. D. 530 ; 53 L. J., Q. B. 251 ; 50 L. T. 298 ; 32 W. E. 858 ; 48 J. P. 694— D. See 47 & 48 Vict. c. 74. VIL ACTIONS AHD PEOCEEDINGS AGAINST LOCAL BOARDS. Action by Officer on Contract with Soard — Illegality.] — See Melliss v. Shirley Local Board, ante, col. 875. Guardians of the Poor acting as Bural Sani- tary Authority — ^Limitation of Actions.] — Sec- tion 1 of the Act 22 & 23 Vict. c. 49, enacts that any debt, claim, or demand which may be lawfully incurred by or become due from the guardians of any union or parish 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. By s. 9 of the Public Health Act, 1875, the guardians of a rural union shall form the rural sanitary authority of that district, and " all statutes, orders, and legal pro- visions applicable to any board of guardians shall apply to them in their capacity of rural authority under this Act for the purposes of this Act":— Held, that s. 9 of the Public Health Act, 1875, does not extend the limitation of time imposed by s. 1 of the previous Act to debts contracted by guardians in their capacity of rural authority, but that that limitation still remains applicable only to debts contracted by guardians as such. Dearie v. Petersfleld Union, 21 Q. B. D. 447 ; 57 L. J., Q. B. 640 ; 60 L. T. 85 ; 37 W. R. 113 ; 53 J. P. 102— C. A. Indictment for Non-repair of Highway — Urban Sanitary Authority.] — An indictment will lie, under s. 10 of the Highway and Loco- motives (Amendment) Act, 1878, against an urban sajiitary authority, acting as the highway authority of the district, for non-repair of a high- way. Meff. V. Wakefield (Mayor), 20 Q. B. D. 810 ; 57 L. J., M. C. 52 ; 36 W. E. 911 ; 52 J. P. 422— D. An indictment against a municipal corporation for non-repair of a highway alleged that the highway was in decay, and that the corporation, ' ' acting by the council as the sanitary authority for the urban district," ought to repair and amend the same, &o. ; but there was no allega- tion to show how the defendants were liable, nor did the indictment conclude with the words " against the form of the statute." At the trial the judge intimated his willingness to make any amendment within his power, but no amendment was in fact made. A verdict having been found for the Crown : — Held, that the indictment was bad, but that, even assuming the necessary amendments to be made, the defendants were entitled to judgment, there being nothing in the Public Health Act, 1875, to make the urban sanitary authority liable to indictment for non- repair, in the same sense as that in which the parish or other persons liable ratione tenura; were liable. Meg. v. Poole {Mayor"), 19 Q. B. D. 602, 683 ; 56 L. J., M. C. 131 ; 57 L. T. 485 ; 36 W. E. 239 ; 52 J. P. 84 ; 16 Cox, C. C. 323— D. Notice of Action — Act "done under the Pro- visions of this Act,"] — The effect of the Public Health Act, 1875, which makes improvement commissioners under local acts urban sanitary authorities, is to reconstitute them as new bodies under the Act, vesting in them as such new bodies the powers given by the local acts as well as those given by the Public Health Act ; and such com- missioners in subsequently doing any act in the exercise of the powers originally conferred by their local acts are acting under the PubUc Health Act, 1875, and consequently are entitled in respect of such Act to any protection or privi- leges given by that Act to members of local authorities acting under its provisions. Zea v. Facey, 19 Q. B. D. 352 ; 56 L. J., Q. B. 536 ; 58 L. T. 32 ; 35 W. E. 721 ; 51 J. P. 756—0. A. A person who is in fact disqualified from being a member of a local authority but who acts in the bonS, fide belief that he is a member is entitled to notice of action under s. 264 of the Public Health Act, 1875. lb. And see next case. Nuisance by Erecting Urinal — Compensation — Notice of Action.] — A local board, assuming to act under the authority of s. 39 of the Public Health Act, 1875 (38 & 39 Vict. c. 55), erected a public urinal partly upon a highway and partly upon a strip of land belonging to the plaintiff, and so near to other adjoining land of the plaintiff as to be a nuisance to her and her tenants, and to depreciate the value of her property :— Held, that the plaintiff was entitled to a mandatory injunction to restrain the board from continuing the urinal upon her land or so near thereto as to cause injury or annoyance to her or her tenants :— Held also, that it was not a matter in respect of which the plaintiff s remedy was by compensation under s. 308 or the act. In such a case notice of action under s. 264 is not required. Sellors v. Matlock Bath 879 HEIELOOMS. 880 Looal Board, U Q. B. D. 928 ; 52 L. T. 762— Denman, J. Erection of Eerb-Stones — Access to Land — Compensation.] — The plaintiff owned land abut- ting upon the highway, upon which an inn and some stabling were erected. These stood back from the highway, and in front of them was an open space (forming part of the same land) which had been left open to and on a level with the highway until the defendants, in exercise of their powers under s. 149 of the Public Health Act, 1875 (38 & 39 Vict. c. 55), and for the con- venience of the public, placed kerb-stones and a raised footpath at the side of the highway, leaving openings so that carriages could still pass at convenient places to and from the plaintiff's land and premises : — Held, that the plaintiff was not entitled to a mandatory injunction directing the defendants to remove the kerb-stones, and that in the absence of any unreasonable conduct the remedy for any injury caused by the kerb- stones would be by compensation under s. 308 of the act. Jb. Compulsory Powers of Purchase — Omission to take Lands specified in Notice.] — When a local authority, in exercise of their powers, serve on the owner of land intended to be taken by them for the purposes of the Public Health Act, 1875, the notice required by s. 176 of that act, they are not bound to proceed with such notice. Their omission, therefore, to take the lands specified in such notice, gives the owner of the lands no right of action against them, notwith- standing the confirmation of a provisional order empowering tham to take such lands. Surges V. Bristol Sanitary Authority, 50 J. P. 455 — D. Contagious Diseases (Animals) — Slaughtering diseased Animals — Compensation.] — By the 42nd section of the Contagious Diseases (Ani- mals) Act, 1878 (41 & 42 Vict. c. 74), it is provided that every local authority shall, from time to time, appoint so many inspectors. and other officers as they think necessary for the execution and enforcement of this act, and shall assign to those iijspectors and officers such duties and salaries or allowances, and may delegate to any of them such authorities and discretion as to the local authority may seem fit, and may at any time revoke any appointment so made. The local authority failed to appoint an inspector, and disease having broken out amongst the plaintiff's cattle, some of them died. The local authority did not slaughter any of the plaintiff's cattle, nor did they pay him any compensation : — Held, that the plaintiff could not maintain an action for damages nor for a peremptory mandamus. Mulcahy v. Kilmaotliomas Guardians, 18 L. E., Ir. 200— Q. B. D. Supply of Water unfit for Use.] — See Milnes V. Huddersjield {Mayor'), post, Watbs. Action by Solicitor— Work done ultra vires.] — See Cleverton v. St. Germain's Union, ante, col. 865. Action for Injunction — Sanction of Attorney- General.] — See Wallasey Local Board ^.Gracey, ante, col. 864. HEIRLOOMS. Sale under Settled Land Act, 1882.] — See Settlement. Security — Inventory.] — A tenant for life of heirlooms will not be required to give security for the heirlooms, but only to sign an inventory, unless there is reason to suppose that the heir- looms will be in danger in his possession. ~ V. ThriTig, 56 L. J., Ch. 767— North, J. HIGHWAY. See WAY. HOTEL. See INNKEEPEE. HOUSE. Inhabited House Duty.] — See Eevenue. HOUSE OF LORDS. Appeal to.]— iSee Appeal. HUSBAND AND WIPE. I. Maebiagb. 1. Validity, 881. 2. Proof and Effect of, 882. 3. Breach of Promise to Marry, 883. 4. Legitimacy of Cliildren, 883. 5. Suits for Nullity, 884. 6. Dissolution — Domicil. — See Intbena- TioNAL Law. 7. Bigamous. — See Ceiminal Law. IL Restitution op Conjugal Eights, 888. III. Judicial Sbpaeation and Divoecb. 1. Cruelty, 890. 2. Desertion, 890. 3. Bars to, 892. 4. Jurisdiction, 894. 5. Procedure and Practice, 894. 881 HUSBAND AND WIFE. 882 6. Intervention of Queen's Proctor and Others, 897. 7. Costs, 899. 8. Alimmiy and Maintenance. a. Pendente lite, 901. b. Permanent Alimony, 902. 9. Custody of and Access to Children, 903. 10. Parliamentary Bills of Divorce, Wi. 11. Order ty Justices for Judicial Sepa- ration, 905. 12. Effect of Decree, 906. 13. Variation of Settleme^its and Deeds, 907. IV. Sbpakation Deeds and Agreements, 910. V. Husband's Rights asd Liabilities, 913. VI. Contracts between Husband and Wipe, 915. VII. Gifts to Husband and Wife, 916. VIII. Wife's Pbopbbtt, Eights and Liabilities. 1. Equity to a Settlement, 917. 2. Dower, 919. 3. Policies of Insurance, 919. i. Separate Estate. a. What is — Creation of, 921. h. Liability of, 925. c. Proceedings against, 930. d. Kemoving Restraint on Anticipa- tion, 932. 5. MainteTiance hy Susiand, 933. 6. Other Property, 935. 7. Dealings with Property. a. Examination — Fines and Reco- veries Act, 935. 6. In other cases, 937. IX. Actions and Proceedings by and against Married Women, 940. X. Mabbiace Settlements. 1. What included in. a. After-acquired Property, 944. T>. In other Cases, 951. 2. Construction. a. In General, 952. h. Election, 960. c. Forfeiture Clauses, 961. 3. Enforcing Covenants, 961. 4. Rectification and Cancellation, 962. 5. Variation, after Decree for Divorce. —See III. 13. 6. Fraudulent in Banhruptcy. — See Bankruptcy, XI. 3. 7. Under 13 Eliz. c. 4, and 27 Eliz. e. 5. — See Fbadd and Misrepresenta- tion. 8. Of Infants — Infants' Settlement Act. — See Infant. I. MABBIAGE. 1. VALIDITY. Domiciled Englisliinan, with Woman of Unci- Tilized Tribe, according to Native Custom.] — A union formed between a man and a woman in a foreign country, although it may there bear the name of marriage, and the parties to it may there be designated husband and wife, is not a valid marriage according to the law of England unless it be formed on the same basis as mar- riages throughout Christendom, and be in its essence " the voluntary union for life of one man and one woman to the exclusion of all others." Bethell, In re, Bethell v. Ilildyard, 38 Ch. D. 220 ; 57 L. J., Ch. 487 ; 58 L. T. 674 ; 36 W. R. 503— Stirling, J. C. B., whose domicil was English, in 1878 went to South Africa, and afterwards resided at Mafe- king in Beohuanalaud. In 1883 he went through the ceremony of marriage with T., a woman of the Baralong tribe, according to the customs of the tribe, among whom polygamy is allowed. C. B. and T. lived together as husband and wife. He was killed in the colony in 1884, and about ten days after his death T. gave birth to a female child. C. B., in a document which he wrote and signed in 1883, made some provision for T. and for a child out of the proceeds of sale of his property in the colony. He refused to be married to T. in a church on the ground that he was a Baralong. He never mentioned the marriage to any of his friends in England, and there was no evidence that he ever introduced or spoke of T. as his wife, but that he called her " that girl of mine." He was in receipt of about jeeOO a year, the rents of estates in England, devised to him for life with remainder to his lawful child or children : — Held, that the union of C. B. and T. was not a marriage in the Chris- tian, but in the Baralong sense, and that it was not a valid marriage according to the law of England. 11. 2. PROOF AND EFFECT OF. Proof of.] — Where a marriage is proved to have been solemnized de facto 110 years ago by people who intended that it should be a good marriage, and it is done bonS, fide and openly, the maxim omnia prsesumuntur rite esse acta applies. Lauderdale Peerage, Tlie, 10 App. Cas. 692 — H. L. (Sc). A., then ill of the malady of which he died, and two days before his death, was married in 1772 in New York to B. by C, an ordained clergyman of the Church of England, then assis- tant minister of Trinity Church, New York. There was produced, inter alia, in support of the marriage, from the custody of the family a cer- tificate signed by C. that he had married A. and B. according to the rites of the Church of England as by law established, and an affidavit signed by the mayor of New York, to the effect that C. had made oath of the truth of the state- ments in the certificate ; a will of date anterior to the marriage, by which A. left all his property to B. and the children then born ; copies of letters showing that one of the executors wrote to his co-executor in England, a brother of A., stating that he was a witness to the ceremony of marriage ; that B. signed herself in A.'s sur- name; that the children were recognised and taken care of by members of the family as A.'s children ; and also War Office records showing that B. received a pension as A.'s widow : — Held, that there was ample proof of a legal marriage. li. 888 HUSBAND AND WIFE. 884 Effect of —Severance of Joint Tenancy — Wife's Chose in Action.] — Marriage does not operate as a severance of the wife's joint tenancy in a chose in action (Bank stock) which has not been reduced into possession by the husband. Baillie V. Treharne (17 Ch. D. 388) disapproved. Butler's Trusts, In re, Hughes v. Anderson, 38 Ch. D. 286 ; 57 L. J., Ch. 643 ; 59 L. T. 386 ; 36 W. E. 817—0. A. 3. BREACH OF PEOMISB TO MAREY. Action against Personal Bepresentatives of Promisor — Survival of Cause of Action — Special Damage.] — An action for breach of promise of marriage, where no special damage is alleged, does not survive against the personal representa- tives of the promisor. The special damage which would cause the right of action to survive must be damage to the property, and not to the person, of the promisee, and must be within the contem- plation of both parties at the date of the promise, and the action can be brought against the executors for such special damage only and not for general damages. Mnlay v. Cliirney, 20 Q. B. D. 494 ; 57 L. J., Q. B. 247 ; 58 L. T. 664 ; 36 "W. E. 534 ; 52 J. P. 324— C. A. Action against Infant — Batification.] — The plaintiff and defendant, who were both under age, became engaged to be married in April, 1886. In September, 1886, the defendant came of age. In October, 1886, the plaintiff's father made an assignment of his property to his creditors, and immediately afterwards informed the defendant of the fact, and told him if he wished to be released from his engagement he could. The defendant then refused to be released, and said he was quite willing to marry the plaintiff, and asked her whether she thought they were old enough ; to which the plaintiff replied they had better wait awhile. The defen- dant subsequently broke off the engagement, and refused to marry the plaintiff : — Held, that there was evidence to go to the jury that there had been a new promise to marry made by the defen- dant after he came of age. Holmes v. Brierley, 36 W. E. 795— C. A. Eeversing 59 L. T. -70 ; 52 J. P. 711- D. 4. LEGITIMACY OF CHILDEBN. Evidence of Husband— Non-Access.] — W., by will, bequeathed 1,5002. to trustees in trust for C, the wife of J., for life, and after her death to divide the same equally among the children of the marriage. J. deserted C, who subsequently cohabited with M., and during such cohabitation A. was born. On the death of C, A., an infant, by her next friend, applied for maintenance out of the fund, whereupon J. filed an affidavit denying the legitimacy of A. upon the ground, among others, of non-access to his wife : — Held, that this was not a "proceeding instituted in consequence of adultery" within the meaning of s. 3 of the Evidence Further Amendment Act, 1869, and therefore, the evidence of the husliand as to non-access was not admissible. Nottingham Guardians v. Tomhinson (4 C. P. D. 343) followed. Walker, In re, Jackson, In re, 53 L. T. 660 ; 34 W. E. 95— Kay, J. Statements by Wife as to Paternity.] — Where the legitimacy of a child bom in wedlock is in issue, previous statements by the mother that the chUd is a bastard are admissible as evidence of her conduct, although she could not be allowed to make such statements in the witness-box. Tlie Aylesford Peerage, 11 App. Cas. 1 — H. L. (B.). Presumption— Duration of Pregnancy,] — The presumption in favour of the legitimacy of a child bom in wedlock is not a presumptio juris et de jure, but may be rebutted by evidence, which must be clear and conclusive and not resting merely on a balance of probabilities. Thus in a suit for declaration of legitimacy where a child had been born 276 days after the last opportunity of intercourse between the husband and wife, and where there was evidence in the wife's conduct tending to show that she regarded the child as the offspring of her paramour, the president directed the jury that it was for them to say whether, on the whole of the evidence given on behalf of those who asserted illegi- timacy, the conviction had been brought home to their minds that the husband was not the father of the child ; and read to them the opinion of Lord Lyndhurst in Morris v. tiames (5 CI. & F. 163). The jury found that the child was illegitimate : — Held, that the direction was right, and that the verdict was not against evidence. Bosvile V. Attorney- General, 12 P. D. 177; 56 L. J., P. 97 ; 57 L. T. 88 ; 36 W. E. 79— D. Inquiry as to — Variation of Settlements.] — On a petition for variation of settlements after a decree of dissolution of marriage, the court refused to order an inquiry into the legitimacy of a chUd born between the date of the decree nisi and decree absolute. Pryor v. Pry or, 12 P. D. 165 ; 56 L. J., P. 77 ; 57 L. T. 533 ; 35 W. E. 349— Hannen, P. Divorce from Lunatic — Suit to perpetuate Testimony.] — A lunatic's wife was divorced for adultery, and it was alleged that the last child bom before the divorce was illegitimate. The committee presented a pelition for leave to prosecute a suit to perpetuate testimony as to the child's illegitimacy : — Held, that the proper course was for the court to direct a settlement of part of the lunatic's property on his children, so as to give the legitimate children an interest in the property which would entitle them to raise the question of the legitimacy of the child last born and bring a suit to perpetuate the testimony on the subject. Stoer, In re, 9 P. D. 120 ; 51 L. T. 141 ; 32 W. E. 1005— C. A. 5. SUITS FOE NULLITY. Insanity — Onus of Proof.] — The burden of showing that the respondent was insane at the time of the marriage lies upon the party assert- ing it, and the court has to determine whether the respondent was capable of understanding the nature of the contract, and the duties and responsibilities which it creates, and was free from the influence of morbid delusions upon the sub- ject. Durham v. Durham, 10 P. D. 80— Hannen, P. Impotence — Delay — Sincerity.]— At the end of 885 HUSBAND AND WIFE. 886 seven years' cohabitation a marriage had not been consummated through the impotence of the alleged husband. The alleged wife subsequently- cohabited with another man, and upon the alleged husband discovering her misconduct she instituted a suit for nullity of marriage against him, and he a suit for dissolution of marriage against her : — Held, that the proof of impotence being clear, her conduct did not show such a want of sincerity as to deprive her of her right to have the marriage annulled. When the im- potence is undoubted mere delay is not suflScient to disentitle the injured party to relief. M. (^faUdy called Z>.) v. D., 10 P. D. 75 ; 5i L. J., P. 68 ; 33 W. R. 657— Hannen, P. In a suit for nullity of marriage on the ground of impotency, there may be facts and circum- stances proved, which so plainly imply on the part of the complaining spouse a recognition of the existence and validity of the marriage, as to render it most inequitable, and contrary to public policy, that he or she should be permitted to go on to challenge it with effect ; but the doctrine, designated as the ' ' doctrine of want of sincerity " in an action of this kind, has been too much extended in recent English decisions, and that doctrine, apart from " approbate," and " repro- bate," has never been recognised by the law of Scotland. G. v. M., 10 App. Cas. 171 ; 53 L. T. 398— H. L. (Sc). Delay in raising a suit of nullity on the ground of impotency is a material element in the inves- tigation of a case which, upon the facts, is doubt- ful ; but there is no definite or absolute bar arising from it. lb. Triennial Cohabitation.] — The canon law rule of triennial cohabitation has not been recognised in England beyond this point, that where a husband or a wife seek a decree of nullity propter impotentiam, if there is no more evidence than that they have for a period of three years lived together in the same house and with ordinary opportunities of intercourse, and it is clearly proved that there has been no consummation, then if that is the whole state of the evidence, inability on the part of the one or of the other will be presumed. On the other hand, the presumption to be drawn from the fact of non-consummation after three years' cohabitation is capable of being rebutted. And, also, every case need not be fortified with the presumption ; for although no presumption can be raised from the absence of consummation within a less period than three years, yet positive evidence may be given, from which the same inference of inability may be drawn. li. Of Petitioner.] — An impotent man cannot maintain a nullity suit merely on the ground of his own impotency ; but if a woman altogether repudiates the relation of wife and the obliga- tions of the marriage contract, the impotent man may show that there is no verum matrimonium, and maintain such a suit. A. v. A. (^falsely called B.") 19 L. E., Ir. 403— Mat. Evidence — Marriage Voidable.] — A marriage was declared null and void on the ground of impotency, after cohabitation of little more than six months, on strong medical testi- mony. A marriage is not void but voidable only, on the ground of impotency. li. Duress — Mental Prostration — Incapacity to resist Coercion.] — The petitioner, a young woman of twenty- two years of age, entitled to a sum of 26,0002. in actual possession and a considerable sum in reversion, had become engaged to the respondent, and shortly after coming of age was induced by him to accept bills to the amount of 3,3252. The persons who had discounted these bills subsequently issued writs against her, and threatened to make her a bankrupt. The distress caused by these threats seriously affected her health, and reduced her to a state of bodily and mental prostration, in which she was in- capable of resisting coercion and threats, and being assured by the respondent that the only method of evading bankruptcy proceedings and exposure was to marry him, she reluctantly went through a ceremony of marriage with him at a registrar's oflBce. In addition to other threats of ruining her, the respondent immediately be- fore the ceremony threatened to shoot her,- if she showed that she was not acting of her free will. The marriage was never consummated, and the petitioner and the respondent separated immediately after the ceremony : — Held, that there was not such a consent on the part of the petitioner as the law requires for the making of a contract of marriage, and that the ceremony before the registrar must be declared niiU and void. Scott V. Sebright, 12 P. D. 21 ; 56 L. J., P. 11 ; 57 L. T. 421 ; 35 W. B. 258— Butt, J. Agreement not to sue — Consideration — Bar.] — In a petition by husband against wife praying that the marriage celebrated between them might be declared null and void on the ground of her incapacity, the respondent pleaded that she and the petitioner after a year's cohabi- tation had agreed to live apart, and had bound 'themselves not to make any claim against each other either in a court of law or equity ; and that if either party should break the agreement the other should be entitled to an injunction to restrain such breach. That it was further agreed that if the respondent committed a breach of the agreement the petitioner should be en- titled to proceed in this court for a declaration of nullity. Averment that there had been no breach of the agreement on the part of the re- spondent : — Held, that the respondent's agree- ment not to sue was a sufficient consideration for the husband's engagement to do the like, and that such an agreement although not by deed was therefore a bar to the petition for declaration of nullity. Aldridge v. Aldridge, or A. v. M., 13 P. D. 210 ; 58 L. J., P. 8 ; 59 L. T. 896 ; 37 W. E. 240— Hannen, P. Interrogatories to Party — Jurisdiction of Divorce Division.] — In a suit for nullity of marriage the court has power to order interro- gatories. Miston V. Smith, 9 P. D. 57 ; 32 W. E. 596— Hannen, P. In a suit for nullity of marriage, the court has power to give leave to administer interrogatories between the parties to the suit ; for suits of that kind were formerly within the jurisdiction of the ecclesiastical courts, which had power to allow interrogatories to be administered between the parties, and now all the jurisdiction of the ecclesiastical courts as to suits for nullity of marriage (including matters of practice and procedure) is vested in the Probate, Divorce, and Admiralty Division. And, further, even if 887 HUSBAND AND WIFE. 888 the power to allow interrogatories to be ad- ministered between the parties did not otherwise exist, it would be conferred upon the Probate, Divorce, and Admiralty Division by the Supreme Court of Judicature Act, 1873 ; for at the time of passing that statute the superior courts of common law and the Court of Chancery had power to allow interrogatories to be administered between the parties to a suit ; and by s. 16, all the jurisdiction of those courts, including the ministerial powers and authorities incident thereto, was transferred to and Vested in the High Court of Justice, and by s. 23 the juris- diction transferred to the High Court may (so far as regards procedure and practice) be exer- cised in the same manner as it might have been exercised by any of the c'ourts whose jurisdiction has been transferred. Haney v. Lovehin, 10 P. D. 122 ; 54 L. J., P. 1 ; 33 W. E. 188— C. A. Application to whom made.] — Semble, that inasmuch as proceedings for divorce and for other matrimonial causes are excluded from the operation of the rules of the Supreme Court, 1883, by Ord. LXVIII. r. 1 (d), an application for leave to administer interrogatories between the parties to a suit ought not to be made to a registrar of the Divorce Division ; but it ought to be made in the first instance to one of the judges of the court. J J. Cross Suits for Nullity and Sissolntion— Cross- examination.] — The parties had presented cross .suite, one for nullity of marriage on the ground of the man's impotence, the other for dissolution on the ground of the woman's adultery : — Held, in the course of the nullity suit that the woman might be cross-examined as to her adultery with the co-respondent in the dissolution suit. M. ifalsely called D.) v. 2)., 10 P. D. 175 ; 34 W. K. 48— Hannen, P. Alimony— Decree Nisi.]— In a suit for nullity alimony continues payable after the decree nisi until the decree is made absolute. S. (falsely dialled B.-) v. £., 9 P. D. 80 ; 53 L. J., P. 63 ; 32 W. E, 756— Hannen, P. Provision for Children — Postponement of making Decree Absolute.] — A decree nisi was made declaring a de facto marriage void, as not having been solemnized according to law. Shortly before the expiration of the period of six months, a petition was presented for a provi- sion for the child of the marriage. On a motion to make the decree absolute, the court held that a provision for the child ought to be inserted in the final decree, and refused to make the decree absolute until materials were furnished for de- ciding what provision ought to be made : — Held, on appeal, that under 23 & 24 Vict. c. 144, s. 7, there is no absolute right to have a decree made absolute at the end of the six months, and that although the judge might have made a provision after the decree absolute, he had jurisdiction to suspend the making the decree absolute for the purpose of inserting in it the provision which he considered necessary, and the court would not interfere with his discretion, there being nothing to show that he had exercised it unreasonably. The act 20 & 21 Vict. c. 85, s. 35, enables the court to order a provision to be made for the children of a marriage which the court has declared to be void. Langworthy v. Langwortliy, 11 P. D. 85 ; 55 L. J., P. 33 ; 54 L. T. 776 ; 34 W. E. 356— C. A. Variation of Settlements — ^Be-trangfer of Pro- perty.] — After a decree declaring a marriage null, the court upon a petition for variation of settlements, made an order that the property brought into settlement should be reconveyed to the parties, in the proportion in which they had respectively contributed to the settled fund, and freed from all the trusts of the settlement. A. ifalsely called M.-) v. 31. (10 P. D. 178), fol- lowed. Leeds v. Leeds, 57 L. T. 373— Butt, J. By a settlement executed in contemplation of marriage, certain property belonging absolutely to the wife was assigned to trustees upon trust for the wife till the solemnisation of the mar- riage, and after the solemnisation thereof to pay the income to the wife for life for her separate use, and after her death to pay the income, vrith certain exceptions, to the husband for life, and after the death of the husband and wife, in trust for the issue of the marriage, and in default of issue to such persons as the wife should appoint, and in default of appointment for the next-of- kin of the wife. The wife obtained a decree declaring the marriage null and void on the ground of her husband's impotence, and after- wards presented a petition for variation of the marriage settlements. The court made an order extinguishing the husband's life interest under the settlements, and afterwards made a further order directing the trustees to retransfer or other- wise put under the petitioner's legal control all the property brought into settlement, for her own use and benefit, free from the trusts of the settlements. A. (falsely called M.') v. M., 10 P. D. 178 ; 54 L. J., P. 31 ; 33 W. E. 232— Butt, J. II. EESTITUTION OF CONJUGAL EIGHTS. Notice or Demand prior to Citation — Form of Notice.] — The written demand for cohabitation and restitution of conjugal rights required to be made before commencing proceedings upon the party to be cited need not be made by the petitioner himself, and therefore where it was made by the petitioner's solicitor at the peti- tioner's request, such demand is sufficient. Though no hard and fast rule can be laid down as to the form of such demand, yet, as a general rule the demand should be conciliatory in its tenour, and therefore where there had been no previous friendly negotiations on the subject, a demand for the restitution of conjugal rights couched in the form of a formal lawyer's letter, is not a compliance with the true meaning of r. 175 of the Rules in Divorce Causes. Field v. Field, 14 P. D. 26 ; 58 L. J., P. 21 ; 59 L. T. 880 ; 37 W. E. 134— C. A. Service of Petition.] — Th^ court has no power to allow service abroad of a petition for restitu- tion of conjugal rights. Chicliesterv. Chicliester, 10 P. D. 186 ; 34 W. E. 65— Hannen, P. Decree for Bestitution — Sufficient Obedience.] ^The duty of the court to issue an attachment ■ for non-obedience of a decree for restitution of conjugal rights is the same since the Divorce Acts as it was before. It is not a sufficient compliance by a husband with a decree for 889 HUSBAND AND WIFE. 890 restitution of conjugal rights that he has pro- vided his wife witli a suitable establishment and sufficient income. Weldon v. Wcldon, 9 P. D. 52 ; 53 L. J., P. 9 ; 32 W. R. 231— D. See, now, 47 & 48 Vict. c. 68. Disobedience to Order — Contempt — Attach- ment.] — A respondent being in contempt for non-obedience of an order for restitution of conjugal rights, the petitioner applied for a writ of attachment against him : — Held, that since the passing of the Matrimonial Causes Act, 1884, the writ could not be issued notwith- standing that the contempt existed prior to that act : — Held, also, that the writ could not issue for non-payment of costs. Weldon v. Weldon, 54 L. J., P. 60 ; 52 L. T. 233 ; 33 W. E. 427 ; 49 J. P. 517— C. A. Affirming 10 P. D. 72— Hannen, P. Neglect to comply with Decree — Judicial Separation.] — Where a husband had refused to comply with a decree ordering him to resume cohabitation within fourteen days of the service thereof, the court, under the 5th section of the Matrimonial Causes Act of 1884, granted a decree of judicial separation, although the period of two years had not elapsed. Harding v. Harding, 11 P. D. Ill ; 55 L. J., P. 59 ; 56 L. T. 919— Hannen, P. Effect of non-compliance with Order — Equiva- lent to Desertion.] — See Bigwood v. Bigwood, post, col. 892. Effect of Separation Deed — Covenant not to Sue. ] — A separation deed, executed by a husband and wife, containing a covenant by trustees for the wife not to sue her husband for the restitu- tion of conjugal rights, is a bar to a suit by the wife for the restitution of conjugal rights. Marshall v. Marshall (5 P. D. 19), approved. Cla/rk V. Clarh, 10 P. D. 188 ; 54 L. J., P. 57 ; 52 L. T. 234 ; 33 W. E. 405 ; 49 J. P. 516— G. A. The parties in a suit for restitution of conjugal rights had been living apart under a deed of separation by which the wife covenanted not to take any proceedings to compel her husband to cohabit with her. The husband, who had not fulfilled his covenant to pay his wife 2001. a year, did not appear in the suit. The court notwithstanding the covenant in the deed, granted the wife a decree of restitution. Tress V. Tress, 12 P. D. 128 ; 56 L. J., P. 93 ; 57 L. T. 501 ; 35 W. R. 672 ; 51 J. P. 504— Hannen, P. Custody of Child — Service of Order — Dis- obedience.] — A husband obtained a decree for restitution of conjugal rights, which was not complied with, and the court afterwards made an order giving the petitioner the custody of the only child of the marriage. A copy of the order for custody was left at the house where the respondent was residing, but the respondent had not given up the child to the petitioner. The covirt, being satisfied that the order as to the custody of the child had come to the knowledge of the respondent, ordered a writ of sequestra- tion to issue against her for non-compliance with the order, without a previous writ of attach- ment, and ordered the respondent to pay the costs of the motion. Allen v. Allen, 10 P. D. 187 ; 54 L. J., P. 77 ; 33 W. K. 826— Hannen, P. See, also, Hyde v. Hyde, post, col. 903. Misconduct of Wife — Effect of Violence and Threats.] — Violent and uncontrollable temper, habitual intemperance, violent conduct in the presence of the husband's guests, assaults on him, acts or threats of violence and offensive language, and false and scandalous statements against his daughters, by which be was obliged to remove them from his house, acts of violence towards his servants — all tending to affect his health and social position — constitute a legal defence to a suit by a wife for restitution of conjugal rights. The court accordingly refused to set aside and amend the respondent's answer pleading them, as vague, irreleyant, and raising immaterial issues, but ordered the respondent to give particulars of the alleged violence, ikc. Cruelty may consist of the aggregate of acts alleged in a pleading, and each paragraph need not allege an independent act of legal cruelty, sufficient in itself to warrant the relief sought. D'Arey v. D'Arcy, 19 L. R., Ir. 369— Mat. in. JUDICIAL SEPAKATION AND DIVORCE. 1. CRUELTY. Condonation — Revival.] — A wife, who had suffered such acts of cruelty from her husband as would probably have been sufficient to enable her to have then obtained a decree for judicial separation, returned to his house and lived ivith him for five years, during which time he treated her with continual unkindness, though he never struck her. His wife was eventually so terrified by his conduct that she finally left her hus- band : — Held, that even if these later acts did not amount to legal cruelty, they did neverthe- less consiiitute such a revival of the earlier cruelty as to warrant the court in pronouncing a decree for judicial separation. Mytton v. Mytton, 11 P. D. 141 ; 57 L. T. 92 ; 35 W. R. 368 ; 50 J. P. 488— Butt, J. 2. DESERTION. What amounts to.] — A husband, in 1880, ceased to reside with his v\dfe on the pretence that his business compelled him to be absent, but he sup- plied her with necessaries and corresponded with her and visited her occasionally, and a child was born in February, 1884. In January, 1884, the wife discovered that he had for two years been living with another woman :— Held, that his conduct did not amount to desertion for two years. Farmer v. Farmer, 9 P. D. 245 ; 53 L. J., P. 113 ; 33 W. R. 169— Hannen, P. Semble, that desertion commenced from the time when his wife discovered the adultery, and that after a lapse of two years from that time she would be entitled to a dissolution of her marriage. Ih. At the trial of a petition by the wife for divorce from her husband on the ground of adultery and desertion, it appeared that they were married in 1866, and that after four years' cohabitation it was agreed between them, on the husband falling into difficulties, that a house and shop should be taken for the yyife, and that she should carry on business in a separate name. From this time the parties had never lived together, though the husband 891 HUSBAND AND WIFE. 892 occasionally visited his wife, and slept with her, and he made her an allowance. His visits were always as far as possible made in secret, and though his wife remonstrated, he refused to recommence open and avowed cohabitation. In 1885 the wife had reason to suspect that her husband was carrying on adulterous intercourse, and she never afterwards cohabited with him. In 1888 she obtained positive proof of his adultery, and thereupon commenced the present suit: — Held, that in the circumstances there was sufficient evidence of desertion for two years without reasonable cause by the husband. Garcia v. Garcia, 13 P. D. 216 ; 57 L. J., P. 101 ; 59 L. T. 52i ; 52 J. P. 584— Butt, J. Husband sentenced to Penal Servitude.] In a wife's suit for dissolution on the ground of adultery and desertion, it appeared that the respondent when he left his wife stated to her that he was going to Ireland for a week's shoot- ing, but in fact he went to Australia to escape arrest on a charge of embezzlement. IJp to the time of his flight he had been carrying on an adulterous intercourse with a woman with whom he had made arrangements to go away, and he was found lining in adultery with another woman at Sydney. Subsequently he was brought back to this country in custody, tried, and sentenced to ten years' penal servitude :— Held, that the <;ircumstances under which the respondent left his vrife constituted desertion, and that the •desertion would continue notwithstanding the fact that he was brought back to this country in custody and prevented by his imprisonment from returning to his wife. Brew v. Drem, 13 P. D, 97 ; 57 L. J., P. 64 ; 68 L. T. 923 ; 36 W. K. ^27— Hannen, P. Husband's want of Means — Hntnal Separation — Correspondence.] — A husband and wife agreed to separate owing to the husband's inability to maintain his wife. They continued to correspond, and numerous letters passed be- tween them, in some of which the husband taunted his wife with not getting a divorce, and said it was cruel of her and her friends to ■" fetter " him. He also made frequent requests for pecuniary assistance. The wife offered to return to her husband, when he informed her in one of his letters that he was ill ; but he wrote and refused her. The husband's letters ceased in July, 1885. The wife wrote four times in answer to the last letter from him, but received no reply. She subsequently made in- quiries and discovered that, while the corre- spondence had been going on and since it ceased, the respondent had been residing at various places and keeping up an adulterous •connexion, and that he was living under his mother's roof with a woman who was not his wife : — Held, that this conduct constituted deser- tion, and, coupled with the adultery, entitled the vrife to a decree of divorce. Smith v. Smith, 58 L. T. 639— Hanneu, P. Decree for Restitution of Conjugal Rights —Refusal to Obey — Adultery revived.] — In a petition by a wife for divorce on the ground of adultery and desertion it appeared that the husband had failed to comply with a decree for restitution of conjugal rights, and that he had also been guilty of adultery before the date of the decree : — Held, that sufficient proof of adultery and desertion had been given to satisfy s. 5 of the Matrimonial Causes Act, 1884, and that the wife was entitled to a decree for divorce. Sigwood v. Sigwood, 13 P. D. 89 ; 57 L. J., P. 80 ; 58 L. T. 642 ; 36 W. E. 928— Hannen, P. See also Harding v. Ha^'ding, ante, col. 889. Proof insufficient — Adjournment — Supple- mental Petition.] — In a suit by the wife for dis- solution of the marriage on the ground of adultery coupled with desertion, the adultery was proved, btit the evidence of desertion feU short of the required period of two years by several months. The hearing was adjourned, and twelve months afterwards the respondent not having returned to cohabitation, the peti- tioner filed ii supplemental petition charging desertion, on proof of which the court granted a decree nisi. Wood v. Wood, 13 P. D. 22 ; 57 L. J., P. 48— Hannen, P. Petition filed before Cause of Action com- plete.] — Where the statutory period of two years necessary to found a charge of desertion is not complete at the time when proceedings for divorce are commenced, such charge can only be pleaded and acted upon by being made the sub- ject of a fresh petition. Lapington v. Laping- ton, 14 P. D. 21 ; 58 L. J., P. 26 ; 59 L. T. 608 ; 37 W. R. 384 ; 52 J. P. 727— Butt, J. 3. BARS TO. Condonation of Adultery — Scotoli Law.] — By the law of Scotland full condonation of adultery (remission expressly or by implication in full knowledge of the acts forgiven), followed by cohabitation as man and wife, is a remissio injuriae absolute and unconditional, and affords an absolute bar to any action of divorce founded on the condoned acts of adultery. Nor can condonation of adultery — cohabitation follow- ing — be made conditional by any arrangement between the spouses. Although the condoned adultery cannot be founded on, condonation does not extinguish the guilty acts entirely, and they may be proved so far as they tend to throw light upon charges of adultery posterior to the con- donation. The doctrine laid down in Durant v. Dwi-ant (1 Hagg. Ecc. Rep. at p. 761) not approved without qualification. Bent v. Bent (4 Sw. & Tr. 106), direction of Lord Penzance to the jury, questioned on principle, and distin- guished from Blandford v. Blandford (8 P. D. 19). Collins V. Collins, 9 App. Cas. 205 ; 32 W. E. 500— H. L. (Sc). A wife confessed to several acts of adultery with E. Her husband forgave her and resumed cohabitation on the alleged condition that she should not speak or hold any communication with E. again. Subsequently she met B. by appoint- ment several times under suspicious circum- stances ; but, admittedly, no act of adultery could be proved. The husband sued for a dis- solution of the marriage on the ground that the condoned adultery was revived by the wife's subsequent conduct : — Held, that to obtain a divorce he must prove adultery subsequent to the condonation, and no less. lb. See Lord Watson's opinion, for the terms of a remission of adultery which would not 893 HUSBAND AND WIFE. 894 constitute plena condonatio in the law of Scot- land, li. Bevival of Adultery.] — Per Lord Blackburn : — ^The doctrine of revival of adultery as a ground on vrhich a divorce has been granted is to be strongly objected to as varying the status of married persons. On principle, a reconciliation being entered into with full knowledge of the guilt and with free and deliberate intention to forgive it, where that reconciliation is followed by living together as man and wife, the status of the couple ought to be the same and not more precarious than if there was a new marriage. Ih. Per Lord Blackburn : — Assuming it to be now established English law that any matrimonial ofEence, though forgiven, may be revived by any other matrimonial ofEence of which the courts take cognizance, it is very modern law, and not so obviously just and expedient that this House ought to infer that it either was or ought to have been introduced into the law of Scotland. lb. See Bigwood v. Bigwood, supra. Revival of Cruelty.] — See Myttmi v. Mytton, ante, col. 890. Adultery of Petitioner — Condonation — Dis- cretionary Bar.] — In a suit by the husband for divorce on the ground of his wife's adultery with the co-respondent, the jury found that the wife and the co-respondent had committed adultery, and assessed the damages at 300Z. The wife in her answer made a counter-charge of adultery committed by her husband, in the house in which he resided with his wife, with a domestic servant in their employment five years before. The husband admitted the charge, but pleaded and proved that his wife had condoned the ofEence and continued to live vrith him : — Held, that under the circumstances the husband's adultery disentitled him to a decree, and his petition being accordingly dismissed, that he was not entitled to the damages. Storey v. Storey, 12 P. D. 196 ; 57 L. J., P. 15 ; 57 L. T. 536 ; 36 W. E. 190 ; 51 J. P. 680— Hannen, P. In a husband's suit for dissolution, the wife's adultery was proved, and the husband confessed to an act of adultery in the year 1874, which he alleged had been committed under the influence of liquor, and which had been condoned by the vrif e : — Held, that the petition must be dismissed. Grosvenor v. Orosvenor, 34 W. R. 140 — Butt, J. Husband found guilty of Cruelty — Bight of Wife to Belief.] — A judicial separation can only be granted where the petitioner comes to the court with a pure character, and is free from all matrimonial misconduct. Accordingly, where a husband and wiEe had both been found guilty of adultery, and the husband had also been found goilty of cruelty : — Held, that the Court had no jurisdiction to make a decree of judicial separation on the ground of such cruelty, how- ever aggravated its character might be. JOmm- mond V. Brummond (30 L. J., P. 177) approved. Otway V. Otway, 13 P. D. 141 ; 57 L. J., P. 81 ; 59 L. T. 158— G. A. A husband obtained a decree nisi by reason of his wife's adultery, but the decree was rescinded, and his petition dismissed by reason of his cruelty and adultery. The parties lived together again, and he committed other acts of cruelty, and was also guilty of rape, when the wife filed a petition for dissolution of the marriage. The court under the circumstances granted the wife a decree nisi. Collins v. Collins, 9 P. D. 231 ; 53 L. J., P. 116; 33 W. R. 170— Butt, J. Conduct conducing to Adultery — Delay.] — In a suit by the husband for divorce on the ground of adultery, which was not defended, the husband admitted that on his wife becoming addicted to habits of intoxication he left her, after eleven years of cohabitation, broke up his home and sold his furniture with the intention of getting rid of her. He made her no allowance and never saw her until eight years after the separa- tion, when he met her by accident. Five years after that meeting he filed the petition. The adultery was proved : — Held, that the conduct of the husband disentitled him to a divorce, and that the petition must be dismissed. Heyes v. Heyes, 36 W. R. 527— D. Affirming, 13 P. D. 11 ; 57 L. J., P. 22 ; 57 L. T. 815 ; 51 J. P. 775 —Butt, J. The parties to a marriage separated by mutual consent after a few days' cohabitation, and lived apart for sixteen years. The petitioner allowed his wife a small sum monthly, but never saw her. Subsequently he ascertained that she was living in adultery, and instituted a suit for dissolution ; but the court held that he had been guUty of conduct conducing to the adultery, and dismissed the petition. Hawkinsy. Hawldns, 10 P. D. 177 ; 54 L. J., P. 94 ; 34 W. E. 47— Hannen, P. Separation Deed — Xo Covenant not to Sue.] — See Moore v. Moore, post, col. 910. 4. jaEISDIOTION. Of English Courts.] — See Intebnational LAVf, IIL 5. PROCEDURE AND PRACTICE. Affidavit verifying Petition — Petitioner ab- sent.] — ^The court vnll not allow the afiidavit verifying a petition for divorce to be sworn by another person when the petitioner is absent from the country of his own free will. Bruce, Ex parte (6 P. D. 16), distinguished. Tartt, Ex parte, 34 W. R. 368— Butt, J. Security for Costs — Attachment.] — The pro- visions of the Debtors Act, 1869, do not apply to a case where a party has been ordered to find security for costs, and disobedience of the order is a contempt of court to be enforced by attach- ment. Jjynch Y. Lynch, 10 P. D. 183 ; 54 L. J., P. 93 ; 34 W. R. 47— Hannen, P. Cruelty — General Charge — Particulars. ] — Evidence of an act of actual violence is not admissible where only a general allegation of cruelty has been made in a petition. Where evidence was ofEered that the husband had struck his wife a blow, and no such specific charge had been made in the petition, the court allowed the hearing to be adjourned in order that particulars might be furnished. Broolt, v. Brook, 12 P. D. 19 ; 56 L. J., P. 108 ; 57 L. T. 425 ; 35 W. R. 351 —Butt, J. 895 HUSBAND AND WIFE. 896 Proof of Identity of Co-respondent— ITnde- fended Action,] — In undefended divorce actions the co-respondent must at the trial be proved to be the person served with the citation, unless an order has been obtained for leave to proceed without making a co-respondent. Duff v. Duff^ 58 L. T. 389 ; 52 J. P. 232— Butt, J. Damages against a Co-respondeut^FrincipIe of Assessment.] — In assessing damages against a co-respondent the jury is not to seek to punish him, but is only to give compensation for the loss which the husband has sustained,' and is to consider whether this loss has been caused by the action of the co-respondent. In a case where the wife has not been seduced away from the husband by the co-respondent, the jury must take into consideration the conduct of the hus- band and the protection or assistance which he may have afforded to her after the separation. The means of the co-respondent are not in any way to be considered as a measure of damages. Keyse v. Keyse, 11 P. D. 100 ; 55 L. J., P. 54 ; 34 "W. E. 791— Hannen, P. Condonation, j — Condonation of the wife's adultery is no answer to the husband's claim for damages against the co-respondent. Norris v. Norris (4 Sw. & Tr. 237) distinguished. Pomero v. Fomero, 10 P. D. 174 ; 54 L. J., P. 93 ; 34 W. R. 124— Butt, J. Where Petition dismissed.] — See Storey V. Storey, ante, col. 893. Order to pay into Court — Attachment.] —A co-respondent disobeyed the order of the court to pay into the registry the damages which had been found against him, and as there was no one to institute proceedings against him under the Debtors Act, 1869, the court ordered the damages to be paid to the petitioner, he under- taking to pay them into court. 6fyte v. Gyte, 10 P. D. 185 ; 34 W. E. 47— Hannen, P. See next case. Beceiving Order — " Judgment Creditor " — Order for Payment to Husband.] — In a divorce suit by a husband a decree for dissolu- tion of the marriage was made whereby F., the co-respondent, was ordered to pay into court the amount of damages assessed by the jury. A further order was made that F. should pay the money to the husband for the purposes of settle- ment upon the children of the marriage. F. failed to pay, whereupon the husband applied to the judge in bankruptcy for a committal order under s. 5 of the Debtors Act, 1869. F. had means suiEcient to pay part only of the money. The judge, acting under d. 103, sub-s. 5, of the Bankruptcy Act, 1883, made a receiving order in lieu of an order for committal : — Held, that the judge had no jurisdiction to make the order, inasmuch as the husband, being a mere receiver or collector for the court of money not to be applied for his own benefit, was not a " judgment creditor" within the meaning of s. 103, sub-s. 5, of the Bankruptcy Act, 1883 ; but that an order should be made against F,, under s. 5 of the Debtors Act, 1869, for payment of the money by instalments, jflryer, Ex parte, Fryer, In re, 17 Q. B. D. 718 ; 55 L. J., Q. B. 478 ; 55 L. T. 276 ; 34 W. E. 766 ; 3 M. B. E. 231— C. A. Execution of Deed by Person nominated by the Court.] — The jurisdiction given by the Judicature Act, 1884, s. 14, where any person neglects or refuses to comply with an order directing him to execute any instrument, to order the execution of the instrument by some person, nominated by the court to do so, may be exercised by the Probate Division of the High Court of Justice ; and the order may be made upon a motion for attachment for non-com- pliance without formal service of a fresh notice of motion, provided the person to be affected by the order has by himself or his solicitor received notice that the application to the court will be made in the alternative form. Howarth v. Bowarth, 11 P. D. 95 ; 55 L. J., P. 49 ; 55 L. T. 303 ; 34 W. E. 633— C. A. Affirming 50 J. P. 376 — Hannen, P. Attachment — Substituted Service.] — In the Probate Division when personal service of notice of motion to attach for non-compliance with an order cannot be effected, and the original order has been duly served, substituted service by analogy to the practice in the other divisions of the High Court, is sufficient. li. Contempt of Court — Publication of Ad- vertisements.] — A co-respondent 'in a suit for divorce, immediately after the service of the citation, caused advertisements to be published denying the charges made in the petition, and offering a reward for information which would lead to the discovery and conviction of the authors of them : — Held, that these advertise- ments constituted a contempt of court. JSrod- rihb V. JBrodribb, U P. D. 66 ; 55 L. J., P. 47 ; 56 L. T. 672 ; 34 W. E. 580 ; 50 J. P. 407— Hannen, P. In a suit for divorce on the vrife's petition on the grounds of adultery and cruelty, the hus- band caused to be printed and published abolit the district in which the wife and her family resided a notice purporting to be signed by him, offering a reward of 25Z. for evidence of the confinement of a young married woman of a female child, " probably not registered " : — Held, that this was a contempt of court as tending to prejudice the petitioner, and dis- crediting her in the assertion of her rights, and a writ of attachment ordered to issue. Pool v. SacTieverel (1 P. Wm. 675) questioned. Butler V. Butler, 13 P. D. 73 ; 57 L. J„ P. 42 ; 58 L. T. 563— Butt, J. Decree Xlsi — Bescission — Beconciliation,] — In a suit for dissolution at the instance of the wife, a decree nisi had been pronounced, but subsequently the parties came together again, and on the wife's application the decree nisi was rescinded on proof that notice had been given to the husband. Troward v. Troward, 32 W. E. 864— Butt, J. Death of Petitioner after— Bevivor.]— A husband who had obtained a decree nisi for dissolution of his marriage died before the time for making it absolute had arrived : — Held, that the legal personal representative of the husband could not revive the suit for the purpose of applying to make the decree absolute. Stanhope V. Stanhope, 11 P. D, 103 ; 55 L. J., P. 36 ; 64 L. T. 906 ; 34 W. E. 446 ; 50 J. P. 276— C. A. Behearing,]— By r. 62 of the Eules in Divorce 897 HUSBAND AND WIFE. and Matrimonial Causes, an application for the rehearing of a cause should be made to a divi- sional court. Heyes v. Heycs, 36 W. K. 527— D. New Trial — Misdirection — Grounds in Notice of Motion.]— Ord. XXXIX. r. 3— which requires that when a new trial is applied for on the ground of misdirection the particulars of the alleged misdirection should be specifically stated in the notice— is applicable to proceedings in a divorce suit. Murfett v. Smith (12 P. D. 116), followed. Taplin v. Taplin, 13 P. D. 100 ; 57 L. J., P. 79 ; 58 L. T. 925 ; 37 W. R. 256 ; 52 J. P. 406— D. When Granted.] — Whether the rules as to granting a new trial on the ground of fresh evidence discovered showing misconduct in the petitioner are the same as in a case between ordinary litigants, qujere. Howarth v. Sowarth, 9 P. D. 219 ; 51 L. T. 872— C. A. Time for Appealing.] — An appeal from a decision of a judge of the Probate Division granting or refusing a new trial in the Divorce Court must be made within 14 days in accord- ance with the Divorce Court Act, 1860 (23 & 24 Vict. c. 144), s. 2. AUer v. AMer, 10 P. D. 110 ; 54 L. J., P. 70 ; 52 L. T. 744 ; 33 W. E. 770 — C. A. The court has no power to extend the time for appealing limited by statute. li. Appeal — Court of Appeal to House of Lords — ^Time.] — Since the Judicature Act of 1881, an appeal to the House of Lords in a matrimonial cause (where an appeal lies) can only be from -a decision of the Court of Appeal ; and such an appeal must be brought within one month after the decision appealed against is pronounced by the Court of Appeal, if the House of Lords is then sitting, or £E not, within fourteen days after the House of Lords next sits. Cleaver v. Cleaver, 9 App. Cas. 631— H. L. (E.) ■6. INTERVENTION OF QUEEN'S PROCTOR AND OTHERS. In what Cases — " Material facts not brought "before the Court."] — A wife sued for dissolution of marriage on the ground of adultery and cruelty. The husband alleged that the wife had been guilty of adultery. At the trial a decree nisi for dissolution was made. The husband applied for a new trial on the ground that fresh evidence had been discovered to show the wife's adultery before the decree nisi, and filed affidavits alleging facts not known at the trial which went to prove adultery. He obtained a rule nisi, but the rule was discharged on argument. The husband appealed. Immediately afterwards an uncle of the husband entered an appearance as intervener, and filed affidavits which were substantially the same as those used on the application for a new trial. There was nothing to show that he was acting on behalf of or in collusion with the re- spondent. The wife moved to make the decree for dissolution absolute. This was refused, but leave was given her to move the court to reject the intervention. The husband abandoned his appeal from the refusal of a new trial. After tius the motion of the wife to reject the inter- vention of the uncle was heard by the president and refused. The wife appealed : — Held, by the Court of Appeal, that the act 23 & 24 Vict. c. 144, s. 7, authorises intervention by any person where material facts have not been brought before the court, whether by intention or through accident. Whether, where the petitioner, after the decree nisi, is guilty of conduct disentitling him or her to have the decree made absolute, the right to intervene is confined to the Queen's proctor, quEBre. Howarth v. Howarth, 9 P. D. 219 ; 51 L. T. 872— C. A. The words "not brought before the court" mean, not brought before the court at a time when the court can act upon them for the purpose of seeing whether a decree nisi ought to be made, and that the bringing them before the court on an application for a new trial is not bringing them before the court within the meaning of this clause, so as to prevent an intervention. lb. Where a respondent is not entitled to a new trial, intervention on the ground of fresh evidence as to acts prior to the decree nisi will not be allowed if the intervener is merely acting on be- halE of and in collusion with the respondent ; but the fact that he is a near relative of the respondent is no ground for rejecting the inter- vention : — Held, therefore, that in the present case, the facts alleged being undoubtedly mate- rial, and the affidavits making a case which showed that there was ground for investigating them, the intervention had rightly been allowed. n. Queen's Proctor.] — In a, husband's peti- tion for dissolution of marriage, where specific charges of adultery have been investigated and decided in the affirmative, the Queen's Proctor is entitled to intervene for the purpose of show- ing that the finding is wrong, by reason of mate- rial facts not having been brought to the know- ledge of the court. Crawford v. Crawford, 11 P. D. 150 ; 35 W. E. 31— Hannen, P. Where specific charges of adultery have been investigated and decided in the affirmative, the Queen's Proctor is entitled to intervene for the purpose of showing that the finding ought to have been the other way, in consequence of material facts not having been brought before the court ; and if he comes to the conclusion, from material facts brought to his notice, that a decree nisi has been obtained contrary to justice, it is his duty to bring such facts to the know- ledge of the court. Crawford v. Crawford, 55 L. J., P. 42 ; 55 L. T. 304 ; 34 W. R. 677— C.A. Restoration of Co-respondent to Suit.] — At the trial of a husband's petition for a dissolution of marriage the petitioner deposed to a con- fession made to him bj' his wife of the com- mission of adultery with the co-respondent. The judge granted a decree nisi, but held that there was no evidence against the co-respondent, who was dismissed from the suit, with costs. The co-respondent was not called to disprove the charges of adultery. The Queen's Proctor after- wards entered an appearance and filed a plea, alleging that the decree was pronounced con- trary to the justice of the case by reason of material facts not being brought before the court ; that certain witnesses who were known G G 899 HUSBAND AND WIFE. 900 by both parties to be in court, and whose evi- dence was material, were not called ; and that, apart from the alleged confession by the re- spondent, there was no evidence of adultery : — The court refused to strike out the Queen's Proctor's plea, and also refused leave to the respondent and the co-respondent to appear on the rehearing of the suit. lb. Pleading.] — It is sufficient for the Queen's Proctor to allege in his plea that the decree was pronounced contrary to the justice of the case by reason of material facts not being brought to the Isnowledge of the court. Crawford v. Crawford, 11 P. D. 150 ; 35 W. B. 31— Hannen, P. Costs of Queen's Proctor as against Go- respondent.] — See BlackJiaU v. Blachhall, infra. 7. COSTS. Wile's Petition — Security for Costs.] — ^Where the wife had, prior to the hearing, obtained an order under Eule 126 for a reference to the Taxing-master to fix a sum to be lodged in court, or secured by the husband, to cover her costs of the trial ; but her solicitor took no steps to have the order Carried out, and proceeded to trial without any sum being lodged or secured : — Held, that if the wife failed to establish her case, she was not entitled to costs against her husband. Carnegie v. Carnegie, 15 L. B., Ir. 613— Mat. At the hearing of a suit for divorce preferred by the wife, the charges of cruelty were with- drawn, and those of adultery were not proved and the petition was accordingly dismissed. No order had been made upon the husband to secxire any sum for his wife's costs. The court refused to order the respondent to pay the costs of the petitioner. Thompson v. Thompson, 57 L. T. 374— Butt, J. Adultery proved — Appeal.] — A husband and wife who were married before 1882, presented cross petitions for dissolution of marriage, the wife's petition being presented before that of her husband. They were both found guilty of adultery, and the husband was also found guilty of cruelty of an aggravated character. The judge refused to decree dissolution of marriage, but granted the wife a decree for judicial sepa- ration, and gave her her costs. The husband having appealed, the Court of Appeal discharged the order for judicial separation : — Held, that the wife was entitled, notwithstanding her adultery, to her costs both in the court below and on the appeal. Semble : — If the wife had been herself the appellant, and had been unsuccessful, she would not have had her costs of the appeal. Otway V. Otway, 13 P. D. 141 ; 57 L. J., P. 81 ; 69L.'T. 1.53— C. A. Husband's Petition — Order against Guilty Wife.] — On a husband's petition a decree was pronounced on account of the wife's adultery with costs against the co-respondent. It was proved that the wife was possesstjd of separate property and an order was made aaainst the wife for the costs of the suit. Milhcard v. Millward, 57 L. T. 569 ; 51 J. P. 616— Hannen, P. The court has absolute discretion to make such order as to costs as to it may seem just, and will not enquire whether at the time the wife com- mitted the wrongful act, she had or had not any separate estate, but will only consider what is just at the time when it has to arrive at a decision ; if the court finds that at that time there is property of the guilty wife upon which an order for costs, if made, can operate, the guilty wife, like any other unsuccessful litigant, will be condemned in costs. Hyde v. Myde, 59 L. T. 523— Hannen, P. Notice of Application.] — Where on a husband's petition for divorce, application was made to condemn the wife, who had not appeared to defend the suit, in costs, the court declined to entertain the application until she had received notice of it. Field v. Field, 13 P. D. 23 ; 58 L. T. 90 ; 36 W. E. 720 ; 52 J. P. 56— Hannen, P. Against Co-respondent — Qneen's Proctor.] — The court refused to condemn a co-respondent, who had not been dismissed from the suit, in the costs of an unsuccessful intervention by the Queen's Proctor under 23 & 24 Vict. c. 144, s. 7. Blackhall \. Blackhall, 13 P. D. 94 ; 57 L. J., P. 60 ; 59 L. T. 151 ; 36 W. E. 926— Butt, J. Agreement to Pay^Power to make Agreement an order of Queen's Bench Division.] — ^An action for judicial separation in the Divorce Division was compromised by the parties, and an agree- ment of compromise signed by them which pro- vided that a separation deed should be executed ; tjiat the agreement might be made a rule of the High Court, and that the respondent should pay the petitioner's taxed costs. A separation deed was afterwards executed, but the respondent refused to pay the taxed costs, and the agree- ment was made an order of the Queen's Bench Division for the purpose of enforcing payment : — Held, that there was power to make the agree- ment an order of court in the Queen's Bench Division, and that as the agreement of compro- mise had been reduced to an agreement to pay costs, the discretion of the court to make the order had been rightly exercised. Smytlie v. Smythe, 18 Q. B. D. 544 ; 56 L. J., Q. B. 217 ; 56 L. T. 197 ; 35 W. E. 346— D. Injunction to restrain Farting with Property — Beconciliation — Continuing Injunction.] — A judicial separation having been pronounced at the suit of the wife, an interim injunction was obtained against the husband restraining him from dealing with certain property belonging to him. Subsequently a reconciliation took place. The wife's solicitor applied to have the injunction continued until a receiver of the property should be appointed or until the balance of his costs was paid ; the court refused to continue the in- junction or to appoint a receiver. Hawes v. Halves, 57 L. T. 374— Butt, J. Charging Order- -Solicitor — Permanent Main- tenance.] — A sum secured to the wife on a dissolution of marriage under s. 32 of the Divorce Act, 1857, is not alimony, and is property in re- spect of which the court has jurisdiction to grant the wife's solicitor a charging order for costs under s. 28 of the Solicitors Act, 1860 ; but the court will not grant such an order unless the 901 HUSBAND AND WIFE. 902 solicitor make out a prim^ facie case of inability to obtain payment in any other way. Harrium V. Harrison, 13 P. Ik 180 ; 58 L. J., P. 28 ; 60 L. T. 39 : 36 W. R. 748— C. A. 8. ALIMONY AND MAINTENANCE. a. Pendente lite. Arrears — Application of Ord. XIV.] — A claim for arrears of alimony pendente lite is not a claim for " a debt or liquidated demand in money," within the meaning of Oi-d. HI. r. 6, so as to entitle the plaintiff to judgment under Ord. XIV. r. 1. Bailey v. Bailey, 13 Q. B. D. 855 ; 53 L. J.. Q. B. 583— C. A. AfBrming, 50 L. T. 722 ; 32 W. R. 856— D. Wife found Guilty of Adultery.] — Where alimony pendente lite has been allotted to a wife in a petition for divorce, such alimony ceases upon a verdict finding her guilty of adul- tery, but the court may in its discretion make an order for the alimony to continue. Wells v. Wells (3 Sw. & Tr. 542) discussed. Dunn v. Dunn, 13 P. D. 91 ; 57 L. J., P. 58 ; 59 L. T. 385 ; 36 W. R. 539—0. A. ITullity — Payment continues till Decree Ab- solute.]- &e S. (/. c. B.') v. B., ante, col. 887. Separation Deed — Covenant not to Molest.] — By a separation deed the husband covenanted to make an allowance to the wife determinable upon her molesting him. The husband subse- quently discontinued the allowance on the ground that the wife had broken her covenant not to molest him. The wife afterwards insti- tuted a suit for judicial separation and applied for an allowance of alimony pendente lite : — Held, that she was entitled to such allowance. Wood V. Wood, 57 L. J., Ch. 1 ; 57 L. J.. P. 31 ; 57 L. T. 746 ; 36 W. B. 33-0. A. Substituted Service of Petition.] — On a motion for substituted service of a petition for alimony pendente lite, in a case where substituted service of the petition for divorce had previously been ordered by service upon the respondent's agents, the court granted the motion, and as it appeared that a copy of the petition for alimony had already been sent in a registereil letter to the agent's address, ordered that further service should be dispensed with. Odevaine v. Ode- vaine, 58 L. T. 564 ; 52 J. P. 280— Butt, J. Injonction to restrain Bemoval of Property.] — The court will not, in order to protect a wife's right to alimony, restrain a husband from re- moving his property out of the jurisdiction of the court before an order for alimony has been made. Kewton v. Newton, 11 P. D. 11 ; 55 L. J., P. 13 ; 34 W. R. 123— Hannen, P. Not a "final Judgment" — Order for pay- ment.] — An order for tiie payment of alimony pendente lite is not a " final judgment " against the husband within the meaning of sub-s. 1 {g) of 8. 4 of the Bankruptcy Act, ItiS*, and a bank- ruptcy notice cannot be issued against the hus- band in respect of arrears due under such an order. Moore, Ex parte (14 Q. B. D. 627) dis- tinguished. Senderson, Ex parte, Henderson, In re, 20 Q. B. D. 509 ; 57 L. J., Q. B. 258 ; 58 L. T. 835 i 36 W. R, 567 j 5 M. B. R. 52—0. A. Order for Alimony— Payment by Instalments.] — On January 30, 1888, an order for alimony pendente lite, and on February 1, 1888, an order for pei-manent alimony was made in the Probate and Divorce Division. The sum of 130Z. being due under these orders, a judgment summons in respect thereof was issued by the wife : — Held, that a receivii'g order in lieu of committal could not be made by the court against the husband under s. 5 of the Debtors Act, 186!i, and that an order directing payment by monthly instalments of \0l. should be made. Otway, Ex parte, Otway, In re, 58 L. T. 885 ; 36 W. R. 698 ; 5 M. B. K. 115— Cave, J. Non - payment — Order for Attachment,] — Where, in an order for payment of alimony, the periods for payment are specified, an absolute order for an attachment under the Debtors Act may be made, without any preliminary order for payment by instalments. Daly v. Daly, 17 L. R., Ir. 372— Mat. b. Permanent Alimony. Proof in Bankruptcy — " Future Debt or Lia- bility. "]^A liability to pay alimony in weekly sums by an order made in divorce under s. 1 of 29 & 30 Vict. c. 32, is not " a future debt or liability " provable in bankruptcy under the Bankruptcy Act, 1883, s. 37, sub-s. 3 ; and, not- withstanding the bankruptcy of the person liable, payment may be enforced as of a debt due in pursuance of an order of a competent court under s. 5 of the Debtors Act. Linton, Ex parte, Linton, hi re, 15 Q. B. D. 239 ; '54 L. J., Q. B. 529 ; 52 L. T. 782 ; 33 W. R. 714 ; 49 J. P. 597 ; 2 M. B. R. 179— C. A. Beceiving Order in lieu of Committal.] — See Otway, Ex parte, supra. Husband and Wife entitled to Property in Beversion — Dum Casta et Sola Clause.] — The court in allotting permanent maintenance will not interfere with reversionary interests, except under special circumstances, where for instance it would be otherwise impossible to secure a pro- vision for the wife. On a petition for permanent maintenance and variation of settlements, after decree absolute at the wife's suit for adultery and cruelty, the registrar found that the re- spondent would come into possession on the death of a person aged niuety years of a sum which would about double his income. The wife, in addition to the income arising out of a fund in settlement in which she had the first interest, was entitled to a sum in reversion which would also about double her income. The husband had brought nothing into settlement, and the registrar proposed that he should secure to his wife a present annual payment bringing up her income to a third of the joint income, and that on his reversion falling in he should secure a further sum bringing up her future income to the same propoitioti, taking her re- version also into consideration. The court refused to confirm this recommendation, but allotted the wife an annual sum equal to one- third of the husband's present income, leaving a a 2 903 HUSBAND AND WIFE. 904 the TeverBionary interests of both parties un- toiaohed. The court also declined to insert a dum sola et casta vixerit clause in the order. Harrison v. Harrison, 12 P. D. 130 ; 56 L. J., P. 76 ; 57 L. T. 119 ; 35 W. K. 703— Butt, J. Assignment of Allowance out of Lunatic's Estate.]— On a decree for judicial separation an order was made for payment of 60Z. a year to the wife as permanent alimony. The husband was afterwards found lunatic by inquisition, and by an order in lunacy and chancery the dividends of a sum of stock to which he was entitled in a chancery suit were ordered to be carried to his account in the lunacy, and 60Z. a, year to be paid out of them to his wife in re- spect of her alimony till further order. The wife assigned the annuity to a purchaser, who presented a petition in lunacy, and in the suit, to liave the annuity paid to her :• — Held, that the petition must be refused, on the ground that whether the annuity was considered as alimony or as an allowance made to the wife by the court in lunacy, it was not assignable. Robinson, In re, 27 Ch. D. 160 ; 53 L. J., Ch. 986 ; 51 L. T. 737 ; 33 W. B. 17—0. A. Charging Order for CoBtB.]— See Harrison v. Harrison, ante, col. 901. 9. CUSTODY OF AND ACCESS TO CHILDREN. Personal Service of Order — Writ of Seques- tration — Discovery in aid of Execution.] — On the application by a husband, who had obtained a decree nisi for divorce against his wife, an order was made that the wife should deliver up Into the custody of the husband the children of the marriage. The wife knew of the order, but evaded service of it, and disobeyed it. On the application of the husband an order was then made declaring the wife contumacious and in contempt, and directing that a writ of seques- tration should issue against the estate and effects of the wife, and that her mother, sister, and brother-in-law should attend the court to be examined as to her whereabout : — Held, on ap- peal — first that as the wife knew of the order for delivery up of the children, and evaded ser- vice of it, personal service of the order upon her was not necessary to give the court jurisdiction to issue the writ of sequestration ; secondly, that the general form of the writ of sequestration against "the estate and effects" of the wife, without any express limitation therein to sepa- rate property of the wife not subject to a re- straint on anticipation, was right, but that the writwould only operate on her separate property which was not so subject ; thirdly, that the court had no jurisdiction to order the attendance of third parties for examination. Scott v. Mor- ley (20 Q. B. D. 120),. distinguished. Miller v. Miller (2 L. E., P. 54), explained. Hyde v. Hyde, 13 P. D. 166 ; 57 L. J., P. 89 ; 59 L. T. 529 ; 36 W. R. 708— C. A. See also Allen v. Allen; ante, col. 889. Under Guardianship of Infants Act.] — See Infant. Postponement of Decree Absolute.] — A decree nisi having been pronounced on petition of the wife, to 9vhom was entrusted the custody of the only child of the marriage, the court was moved to declare the respondent to be " a person unfit to have the custody " of such child within s. 6 of 49 & 50 Vict. c. 27. The court postponed making the decree absolute and adjourned the applica- tion for further materials. SoHnson v. Robinson, 57 L. T. 118 ; 51 J. P. 39— Butt, J. Access to Children— Separation Deed.] — See Hunt V. Hunt, post, col. 913. 10. PARLIAMENTARY BILLS OP DIVOECE. Personal Service out of the Jurisdiction — Affidavit of Service. ]— The respondent in a divorce 'bill being out of the jurisdiction and the petitioner in poor circumistances, the House dispensed with the attendance at the bar of a witness to prove personal service of the biU and the several orders of the House on the re- spondent ; and ordered that an affidavit proving such personal service, and sworn under 18 & 19 Vict. c. 42, before the British minister or consul at the place where the respondent resided, should be deemed sufficient proof of such service. JoynVs Divorce Bill, 13 App. Cas. 741 — H. L. (DO- Bastardising Clause.] — A paragraph in a divorce bill contained allegations tending to bastardise a child to which the wife had given birth during the marriage. There was access at the natural period of the conception of the child : — Held, that such paragraph was inad- missible and must be struck out of the bill. Hewat's Divorce Bill, 12 App. Cas. 312— H. L. (D.). Service of Xotlce of Second Beading — Sub- stituted Service. ] — In proceedings upon a divorce bill application was made in May, 1886, to dis- pense with personal service on the respondent on the ground that his address was unknown to the petitioner,'that a solicitor who had previously acted for the respondent had admitted that he knew of his address but had refused to divulge it, and that the respondent had been last heard of in February, 1886, being then at Montreal, in Canada : — Held, that the application was premature, and must be refused. Gifford's Divorce Bill, 12 App. Cas. 361— H. L. (D.). Where on a bill for divorce it appeared that the respondent's address was concealed, and the House ordered substituted service, service was ordered to be made on the respondent's solicitor, on the respondent's parent, and also on the person with whom the respondent appeared to be residing. A.'s Divorce Bill, 12 App. Cas. 364— H. L. (D.). Adultery— Impotence — Provision for Wife.]— Where, on a bill of divorce by the husband on the ground of the wife's adultery, the adultery was proved, but it appeared that the husband had not fulfilled his duty by providing a home for the wife when she was separated from him by order of his medical attendant, the House in passing the bill directed that a clause should be added making provision for the wife. A.'s Divorce Bill, 12 App. Cas. 364— H. L. (D.). Allowance to Wife.]— Where upon a bill for 905 HUSBAND AND WIFE. 906 divorce by the husband it appears that the wife has no means to defend herself, the House will order the husband to pay her a small sum in order that she may make her defence. A.'s Divorce mil, 12 App. Cas. 364— H. L. (D.). Cruelty.] — Acts which would if done- in England be held by the High Court of Justice to constitute legal cruelty, will also be held to con- stitute legal cruelty in divorce bills. Gifford's Divorce Sill, 12 App. Cas. 361— H. L. (D.). Wife's Bill — Adultery coupled with Cruelty.] — The same evidence which since the Divorce Act, 1857, enables the Divorce Court to pro- nounce a decree for dissolution of marriage will be considered by the House of Lords sufficient ground for passing a divorce bill relating to Ireland, where that act does not apply. Westropp's Divorce Bill, 11 App. Cas. 294 — H. L. (D.). 11. OKDEE BY JUSTICES FOE JUDICIAL SEPARATION. Jurisdiction.] — Magistrates at petty sessions have power to order a judicial separation for an aggravated assault, even though they only inflict the penalty of fine or imprisonment for a common assault. Woods v. Woods, 10 P. D. 172 ; 33 W. E. 323 ; 50 J. P. 199— Butt, J. Besumption of Cohabitation, Efiect of.] — Upon the conviction of a husband for an aggra- vated assault on his wife, justices made an order, under s. 4 of the Matrimonial Causes Act, 1878, that the wife should be no longer bound to cohabit with her husband, and that he should pay to her a weekly sum for her maintenance. The wife subsequently resumed cohabitation with her husband for a time, and then again left him : — Held, that the order was annulled by reason of the subsequent resumption of cohabitation, and therefore that the wife could not enforce pay- ment of weekly sums alleged to have become due tinder it after she' again left her husband. Haddon v. Haddon, 18 Q. B. D. 778 ; 56 L. J., M. C. 69 ; 56 L. T. 716 ; 51 J. P. 486 -D. Application to vary Order — Evidence of Wife's Adultery.] — Where an order has been made under section 4 of the Matrimonial Causes Act, 1878, authorising a wife to refuse to cohabit with her husband, the presumption of non-access applies from the date of the order as in the case of a judicial separation ; and the justices on an application to vary the order on account of the vrife's adultery cannot refuse to receive the direct evidence of the husband or the admissions of the wife in proof of the paternity of a child bom more than nine months after the separation. Hetlierington v. Hetlieringtun, 12 P. D. 112 ; 56 L. J., P. 78 ; 57 L. T. 533 ; 36 W. E. 12 ; 51 J. P. 119 ; 294— Hannen, P. Application to Sischarge Order for Payment — How made.] — Where an order has been made under the Matrimonial Causes Act, 1878 (41 & 42 Vict. c. 19), s. 4, for the payment of money by the husband or custody of children by the wife, an application to discharge the order on the ground that the wife has been guilty of adultery must be made to the court or magistrates by whom the order was made, and not to the Probate and Admiralty Division. lb. Appeal to what Court.] — An order under s. 4 of the Matrimonial Causes Act, 1878, or a re- fusal by the justices to vary such order, is subject to appeal to the Probate and Admiralty Division, although the justices have stated a case for the opinion of the Queen's Bench Division, which has not been determined, li. A husband ha.ving been convicted of an aggra- vated assault on his wife was sentenced to one month's imprisonment and the justices ordered a judicial separation and an allowance to the wife of £2 a week : notice of appeal to quarter sessions against the conviction was given, and pending the appeal the husband applied to the Probate, Divorce and Admiralty Division to have the order varied:— Held, that the court would hear the appeal, though the appeal to quarter sessions was pending. Qoodwin v. Goodwin, 51 J. P. 583— Butt, J. Power to Order Maintenance.] — See post, cols. 933, 934. 12. EFFECT OF DECEEE. Judicial Separation — Wife's Property — Property subsequently acquired.] — A wife who has obtained a decree for judicial separation is to be considered as a feme sole with respect to such property only as she may acquire or which may come to or devolve upon her after the decree : s. 25 of the Divorce and Matrimonial Causes Act, 1867 (20 & 21 Vict. c. 85), not applying to pro- perty to which the wife was entitled in possession at the date of the decree. Cooke v. Fuller (26 Beav. 99) distinguished. Waite v. Morland, 38 Ch. D. 135 ; 57 L. J., Ch. 655 ; 59 L. T. 185 ; 36 W. E. 484— C. A. Covenant to Settle After-acquired Property.] — Where a marriage settlement con- tained a covenant to settle all property (except jewellery and money up to 200Z.) which the wife, or her husband in her right, might acquire "during the intended coverture," and after a decree for judicial separation the wife became entitled to certain stocks :^Held, that by virtue of s. 25 of the Divorce Act, 1857, the stocks belonged to her as a feme sole, and that the covenant to settle " during the coverture " had become inoperative. Dawes v. Creyhe, 30 Ch. D. 500 ; 54 L. J., Ch. 1096 ; 53 L. T. 292 ; 33 W. E. 869— V.-C.B. Divorce — Bequests in Wills— "Wife."]— A testator left shares in his residuary estate in trust for his sons for life, and from and after the decease of each son, in trust to permit any wife of such son to receive the income of his share during her life. One of the sons married, was divorced from his wife and died : — Held, that the divorced wife was not entitled to the life interest in his share. Bullmore v. Wynter (22 Ch. D. 619) disapproved. HitcMns v. Morrieson, 40 Ch. D. 30 ; 58 L. J. Ch. 80 ; 59 L. T. 847 ; 37 W. E. 91— Kay, J. " Sole and Unmarried."]— A testatrix, by her will made in 1860, bequeathed a fund to 907 HUSBAND AND WIFE. 908 trustees, on trust to pay the income to her hus- band for his life, and on his death to divide the fund into four equal parts, and, as to one of the parts, " upon trust to pay the same to J. H,, spinster, if she be then sole and unmarried, but, if she be then married," the testatrix directed her trustees to pay the income of the fourth part to J. H., for her life, for her separate use, and after her death to hold it on trust for her children. In June, 1878, the testatrix died, and her hus- band died in April, 1883. In April, 1861, J. H. married, and in November, 1878, a decree absolute was made for the dissolution of her marriage. There were three children of the marriage. J. H. did not marry again : — Held, that the words " then sole and unmarried " meant " not having a husband" at the time of the death of the tenant for life, and that in the events which had hap- pened, J. H. was absolutely entitled to the one- fourth share. LesingJiam's Trusts, In re, 24 Ch. D. 703 ; 53 L. J., Ch. 333 ; 49 L. T. 235 ; 32 W. E. 116— North, J. 13. VARIATION OF SETTLEMENTS AND DEEDS. After Decrees for Nullity,] — See ante, col. notion to confirm Registrar's Report,] — A motion to confirm a registrar's report ordering a variation of a settlement after a decree for dis- solution of the marriage, need not be made within fourteen days after notice of the filing of the report in the registry by the petitioner. Farrington v. Farrington, 11 P. D. 84 ; 55 L. J. P. 69— Butt, J, Conciirrent Jurisdiction of Chancery Division, ] — The Chancery Division has the same juris- diction as the judge of the Probate Division to modify settlements, but where the matter has already been gone into in that division, a judge of the Chancery Division will not interfere. After dissolution of marriage on the husband's petition, an order was made that trustees of the marriage settlement should pay an annual sum out of settled real property of the wife to the husband for the maintenance of the infant child of the marriage. The husband having died, the widow became absolutely entitled to the pro- perty, and a further order directed that the trustees of the settlement should pay the annuity to the guardians of the infant. There were, in fact, no trustees at that time. The annuity was subsequently declared to be perpetual. On the application by the child of the marriage, the court ordered execution of a deed securing the annuity on the settled property, but allowed no costs of the application, as the order might have been obtained by summary process in the Probate Division. BlacTiett v. BlacTiett, 51 L. T. 427 — North, J. Wife's Costs not Considered.] — Where a mar- riage has been dissolved on the ground of the wife's adultery, the CQurt will not, when directing the variation of the marriage settlements, take into consideration the amount of costs incurred by the wife. Noel v. Noel, 10 P. D. 179 ; 54 L. J., P. 73 i 33 W. E. 552— Hannen, P. Payment of Annual Sum to Hushand,] — Upon application to vary a marriage settlement after a decree for divorce on the husband's petition, it appeared that the wife's income under the settle- ment amounted to 1,050Z. a year. The husband possessed an income of about 600Z. a year, part of which arose from money received from the respondent. There were no children of the mar- riage. The court varied the trusts of the settle- ment by ordering the trustees to pay the husband 300Z. a year during the joint lives of husband and wife. Farrington v. Farrington, 11 P. D. 84 ; 55 L. J., P. 69— Butt, J. Freedom from Trusts — Child born.] — On a petition for variation of settlements after a decree for dissolution of marriage by reason of the wife's adultery, where a child had been bom between the date of the decree nisi and decree absolute, and fourteen months after the wife had eloped from her husband, the court refused to transfer funds in settlement to the parties free from the trusts of the settlement. Pryor v. Pryor, 12 P. D; 165 ; 56 L. J., P. 77 ; 57 L. T. 533 ; 35 W. E. 349— Hannen, P. Division of Trust Fund.] — By » post- nuptial settlement a husband assigned certain property to trustees on trust to pay him the income during his life, or until he had incurred a forfeiture, and on a determination of his inte- rest, to his wife for her life, with further dis- cretionary trusts for the benefit of the husband's next of kin, or for the benefit of a second wife, or the issue of a second marriage. The husband became bankrupt, and by a compromise sanc- tioned by the Chancery Division a portion of the fund was assigned to his trustee in bankruptcy, and his interest in the remainder was assigned to the trustees of the settlement. Subsequently the marriage was dissolved on account of the wife's adultery, and on a petition for variation of settlements the registrar proposed that the trusts of the settlement should be extinguished, and that seven-twelfths of the fund should be paid to the husband, and five-twelfths to the wife. Both parties agreed to this, but the trustees of the settlement objected, and the court refused to sanction a division of the fund, but ordered that the income of five-twelfths of it should be paid to the wife, and that in all other respects the trusts of the settlement should remain in force. Smith v. Smith, 12 P. D. 102; 56 L. J., P. 51 ; 57 L. T. 375 ; 35 W. K. 459— Hannen, P. Power to deal with Capital — Discretion of Judge.] — On a petition for variation of a settle- ment the judge refused to give the wife, the petitioner, any part of the capital of the fund, which had been all settled by the husband, although there were no children of the marriage, or to order payment of the petitioner's costs out of the funds. And he gave a portion only of the income to the wife : — The Court of Appeal affirmed the decision, holding that although the court had undoubted jurisdiction to deal with the capital, it was not for the benefit of the wife to give her any portion of it ; and the court refused to interfere with the discretion of the judge as to the amount of income awarded to her. Ponsonhy V. Ponsonby, 9 P. D. 122 ; 53 L. J., P. 112 ; 51 L. T, 174 ; 32 W. E. 746— C. A. 909 HUSBAND AND WIFE. 910 Power of Appointingf New Trustees.]— In the Tariation of settlements the court has jurisdiction to extinguish a joint power of appointment of new trustees. OppenJieim v. Oppenlmm, 9 P. D. 60 ; 53 L. J., P. 48 ; 32 W. R. 723— Butt, J. Wife's Power of Appointment.] — In a petition for variation of settlements after a decree of dissolution on account of the wife's adultery, -the registrar by his report recommended that the power of appointment over the fund given to the wife by the settlement should be extinguished, and that she should be deprived of the power of appointing or joining in the appointment of new trustees. The petitioner had signified his willing- ness that the respondent should continue to re- ■ceive 1002. a year out of loOZ. settled on her. The court confirmed the first of these recom- mendations, but disallowed the second, on the ground that as the respondent was to continue to receive an income from the fund she had an interest in the appointment of trustees. An ■order extinguishing the power of appointment ■of ftmds in the settlement is an order made, within the words of the section, " with reference to the application of the whole or a portion of the property settled." Bosmle v. Bosvile, 13 P. D. 76 ; 57 L. J., P. 62 ; 58 L. T. 640 ; 36 W. B. 912 — Butt, J. And see next case. Wife's Interest Extinguished — Payment of Half of Property— Beversion — Power of Appoint snent.] — Property was brought into settlement by both the husband and the wife, with a joint power of appointment in favour of the children of the marriage ; but with regard to the wife's property, which included a reversionary interest, the settlement gave her, in certain events, a power of appointment in favour of a second or subsequent marriage. The marriage was dis- solved on the ground of the wife's adultery, the husband having the custody of the two children of the marriage. The court varied the settle- ments by absolutely extinguishing the wife's interest in the property brought into settlement by the husband, thus leaving their respective incomes nearly equal. The court further ordered that one-half of the wife's property should be paid to the husband and children, -without taking into account the amount of the -wife's costs of the suit ; and also that one-half of the wife's reversionary interest should, upon its fall- ing into possession, be assigned to the husband and children. The court also extinguished the •wife's power of appointment under the joint power, and varied the wife's power of appoint- ment over her own property in favour of a future iiusband or the children of a future marriage, by restricting its benefit to any husband married after the death of the petitioner, and to children of a subsequent marriage born after the death of the petitioner. JVoel v. JVoel, 10 P. D. 179 ; 54 L. J., P. 73 ; 33 W. E. 552— Hannen, P. Inquiry as to Legitimacy of Child.] — See Pryor v. Pryor, ante, col. 884. Sealing with Eeversionary Interests.] — See Sarrison v. Harrison, ante, col. 903. Power to vary Separation Deeds.] — See Clif- ford V. Clifford, infra. IV. SEPABAIION SEEDS AND AGREE- MENTS. Effect of— Alimony pendente lite — Covenant not to molest.] — 5ee Wood v. Wood, ante, col. 901. Power of Court to vary, after Dissolution of Marriage.]— In June, 1881, a deed of separation was executed by which the husband agi'eed to pay, for the benefit of the wife, 52Z. a year. Shortly after the separation she committed adultery, and in November, 1882, a decree for dissolution of the marriage was made absolute. In April, 1883, the husband obtained leave to present a petition to vary the deed, on payment of all arrears up to that time There were three children of the marriage, who were living with the husband. A petition having been presented, the matter was referred to the registrar, who re- ported that the wife had no means of support, and that the husband's income was about 2101. a year. Butt, J., treated the case as one of alimony depending mainly on the husband's means, and refused to vary the deed. But held, on appeal, that the case was not to be treated as one of alimony, but one in which the court had a dis- cretion as to the amount of aUowanoe which ought to be made to the wife under all the cir- cumstances ; and that, having regard to the circumstances, and the conduct of the wife in the suit, the husband ought to be allowed to retain one-half of the allowance provided by the deed. Clifford v. Clifford, 9 P. D. 76 ; 53 L. J., P. 68 ; 60 L. T. 650 ; 32 W. E. 747— C. A. Effect of Beconciliation upon.] — A husband and wife when before the Divorce Court, made an agreement in writing that if judicial separa- tion were decreed, the wife should be permitted to enjoy during her life certain furniture ; but that if she annoyed her husband her enjoyment of it should cease. Judicial separation was decreed, and the wife took possession of the furniture. The husband and -wife afterwards resumed cohabitation, — Held, in an action by the wife to recover the furniture, that the agree- ment came to an end when cohabitation was resumed ; and that as the wife was entitled to the furniture during separation only, she took nothing under 20 & 21 Vict. c. 85, s. 25, which relates to property acquired by the wife during separation. Dictum in Randle v. Gould (8 E. & B. 457) questioned. Nicol v. Niool, 31 Ch. D. 524 ; 55 L. J., Ch. 437 ; 54 L. T. 470 ; 34 W. E. 283 ; 50 J. P. 468— C. A. No covenant not to Sue or to Condone — Jndicial Separation,] — In a suit by the husband for dis- solution on the ground of his wife's adultery, the ■wife in her answer made a counter-charge of desertion, and prayed for a judicial separation. It appeared that the husband left his wife in November, 1884, and in January, 1887, a deed was executed by which the wife agreed to live apart from her husband, but there was no cove- nant not to sue and no agreement to condone past offences. The jury found all the issues in favour of the -wife :— Held, that the deed was not a bar to the -wife's remedy, and that she -was entitled to a decree of judicial separation. Moore v. Moore, 12 P. D. 193 ; 56 L. J., P. 104 j 911 HUSBAND AND WIFE. 912 67 L. T. 568 ; 36 W. K. 110 ; 51 J. P. 632— Butt, J. Action by Wife on Agreement — Maintenance ^No Trustees.] — See Macgregor \. Macgregor, post, co). 916. Covenant with Trustees to Maintain Children — Eight of Child to sue— Cestui que trust — Stranger suing on Covenant.] — To entitle a third person, not named as a party to a con- tract, to sue either of the contracting parties, that third person must possess an actual bene- ficial right which places him in the position of cestui que trust under the contract. By a deed of separation between husband and wife, the husband covenanted with the trustees to pay to them an annuity for the use of the wife and two eldest daughters, and also to pay to the trustees all the expenses of the maintenance and educa- tion of the two youngest daughters, provided that the trustees permitted them to go to such school as the husband should direct, and pro- vided also that the covenants by the trustees were duly observed and performed : provided also that the two youngest daughters should live at such place (being reasonable and proper for the purpose) as the husband should direct, and should be maintained and educated at his expense, the husband and wife to have all reasonable access to them. And the trustees covenanted with the husband that they would, during the continuance of the separation, keep him indemnified against all liability for the maintenance of the wife and two eldest daughters, and against all molestation by them, and that the wife would not take any proceed- ings against the husband for alimony, except as aforesaid ; and that they, the trustees, would, on the husband defraying all the expenses con- nected therewith, carry out his desires as to the school at which the two youngest daughters should be educated, and the place at which they should live, and would permit them, if they so desired, and without any interference on the part of the wife, to accept any invitation of the husband to reside with him. On one of the two youngest daughters subsequently attaining six- teen, the husband refused any longer to main- tain her, whereupon she brought an action, by her next friend, against the husband and the trustees of the separation deed to enforce the husband's covenant, the trustees having refused to allow their names to be used as plaintiffs: — Held, that upon the construction of the deed, the plaintifi was not in the position of cestui que trust under the covenant so as to entitle her to maintain the action, but liberty was given to her, under the Eules of the Supreme Court, 1883, Ord. XVI. r. 2, to amend the writ, by adding the trustees, the wife, and the other daughters, or any of them, as plaintiffs. ToucTie V. Metropolitan Railway Warelwusing Covi- pany (6 1). E., Ch. 671) considered. Gandy v. Qandy, 30 Ch. D. 57 ; 54 L. J., Ch. 1154 ; 53 L. T. 306 ; 33 W. E. 803— C. A. The trustees refusing to be joined as co-plain- tiffs, the statement of claim was amended by making the wife a co-plaintiff : — Held, that she had such an interest as entitled her to sue, the deed being an arrangement between the husband and wife, and the trustees being introduced on her behalf in order to get over the difficulty that the husband and wife could not at law sue each other, so that the trustees were to be considered trustees for the wife, and if they refused to sue, she could sue in equity. Xb. Party taking Advantage of and Bepudiating Deed.] — After the separation deed the husband committed adultery, and a decree was made for judicial separation, giving the custody of the two youngest daughters to the wife. . After this the wife applied for increased alimony, which was granted by the president, but his decision was reversed on appeal (7 P. D. 168), both the argu- ments and the judgment of the Court of Appeal proceeding on the footing (though the court did not expressly decide the point) that the husband remained liable under the dfeed to pay for the maintenance and education of the two youngest daughters. He now contended that his covenant was put an end to by the custody of the youngest daughters being given to his wife : — Held, that he was not at liberty to retain the benefit of a decision given on the footing that his liability under the covenant continued, and at the same time to insist that his liability under it had determined, and the appeal was ordered to staud over, with liberty to the wife to apply to the Divorce Court for increased alimony, if she should be so advised. Ih. Absolute Covenant to pay Annuity — Adultery by Wife.] — In a separation deed a. covenant, by which the husband undertakes to pay his wife an annuity without restricting his liability to such time as she shall be chaste, is good, and is not against public policy, and the covenant remains in force and the annuity continues payable, although the wife afterwards commits adultery. But, semble, per Cotton, L. J., on the authority of Mans V. Carrinciton (2 De G. F. & J. 481), that if the covenant had been inserted in the separation deed with the intent that the wife might be at liberty to commit adultery, the deed would have been void. Fearon v. Aylesford {Earl^, 14 Q. B. D. 792 ; 54 L. J., Q. B. 33 ; 52 L. T. 954 ; 33 W. E. 331 ; 49 J. P. 596— C. A. Covenant against Molestation — Independent Covenants — Molestation, what is.] — Covenants in a separation deed, by which respectively the husband has covenanted to pay an annuity to a trustee for the wife, and the trustee has cove- nanted that the wife shall not molest the husband, must be construed as independent covenants in the absence of any express terms making them dependent, and therefore a breach of the covenant that a wife shall not molest the husband, is not an answer to an action for the annuity. Neither adultery alone by the wife, nor adultery by her followed by the birth of an illegitimate child, is a breach of a covenant in a separation deed against molestation by the wife. But, semble, adultery by the wife followed by the birth of an illegitimate child whom she puts forward as the child of her husband, especially if this is done with intent to claim a title or property to which the legitimate offspring of her husband would be entitled, is evidence of a breach of a covenant against molestation by her. — By Brett, M.E., in order to constitute a breach of the covenant in a separation deed against molestation by a wife, some act must be done by her or by her authority with intent to annoy her husband and whieh is in fact an annoyance to him, or at least some act 913 HUSBAND AND WIFE. 914 must be done by her or by her authority with a knowledge that it must of itself without more annoy her husband, or aijnoy a husband with reasonable and proper feeling. lb. Covenant as to Custody of Children — Access.] — By a deed of separation made in 1880 between H., a medical officer in the army, and his wife, provision was made as to the custody of their four children (of whom the eldest w^as eleven and the youngest three years of age) during the approaching absence of the husband in India, after which he was to resume the entire custody of them, but he covenanted that full and free liberty of access to them should be always accorded to the wife, to the extent at least of her having the opportunity of spending one day In every fortnight with them. In 1884 he was ordered to Egypt and proposed to take the first and third of the children with him. Mrs. H. applied for an injunction to restrain him from doing so : — ^Held, that the covenant did not bind H. to keep the children in a place where Mrs. H. could conveniently have access to them, and did not preclude him from taking them with him to any place where he might be ordered in the course of his duties, and that the injunction must be dissolved, there being no case made that he was removing them for the purpose of prevent- ing Mrs. H. from having access to them. Hunt V. Hunt, 28 Ch. D. 606 ; 52 L. T. 302 ; 33 W. E. 157— C. A. Effect of on Bestitution of Conjugal Bights.] — See ante, col. 889. V. HUSBAKD'S EIGHTS AND UABIIITIES. Chattels Beal of Wife not vested in Possession during Coverture.]— A vrife entitled to a term, subject to a- life estate therein, predeceased her husband during the subsistence of the life estate: — Held, that it was not necessary for the husband to take out letters of administration to her in order to complete his title to the leaseholds. Sellamy, In re. Elder v. Pearson, 25 Ch. D. 620 ; 53 L. J., Ch. 174 ; 49 L. T. 708 ; 32 W. R. 358— Kay, J. Partial Intestacy — Devolution of Separate Estate.] — The Married "Women's Property Act, 1882, does not affect the right of the husband to succeed, on the death of the vrife, to her undis- posed-of separate personalty. Lamiert, In re, Stanton v. Lambert, 39 Ch. D. 626 ; 57 L. J., Ch. 927 ; 59 L. T. 429— Stirling, J. A married woman who died on the 13th of September, 1887, leaving a husband and three children surviving, made a will on the 7th of September, 1887, in exercise of a power of ap- pointment, and appointed executors. The will did not purport to dispose of any other property. At her death she was entitled to separate per- sonal estate not included in the power. Probate of the will was granted under the Amended Pro- bate Rules of April, 1887, in the ordinary form without any exception or limitation : — Held, that the executors were trustees for the husband of the undisposed-of property, and that the pro- bate duty and the costs connected with probate ought to be apportioned rateably between the appointed and the undisposed-of property. lb. Executor of Wife — Betainer for Funeral Ex- penses— Estate insufficient. ] — A husband, execu- tor of his wife's will made under a testamentary power of appointment, is entitled to retain out of her estate the expenses of her funeral though such estate was insufficient for creditors, and her will did not contain any charge of debt» and funeral expenses. MoMyn, In re, Light- boion V. MeMyn, 33 Ch. D. 575 ; 55 L. J,, Ch. 845 ; 55 L, T, 834 ; 35 W, R. 179— Chitty, J, Liability for maintenance of Wife— In Case of Divorce.] — See ante, cols. 901 et seq. On Desertion of Wife.] — See post, cols. 933, 934. In case of Separation Agreement.] — Sec- McGregor V. McGregor, post, col. 916. Order obtained by Guardians.] — See Poor Law (Maisttenanck). Liability for Necessaries — ^Wife living apart from Husband — Adultery — Connivance.] — In an action against a husband for necessaries supplied to his wife it appeared that the wife had com- mitted adultery with the connivance of her husband, and the husband subsequently turned her out of doors ; that she had no means of support ; and that the plaintiff supplied her with the necessaries in question while she was living separate from her husband : — Held, that the husband was liable. Wilson v. Glossop, 20 Q. B. D. 354 ; 57 L. J., Q. B. 161 ; 58 L, T, 707 ; 36 W, R, 296 ; 52 J, P, 246— C, A, Liability for Acts of Wife — Agency.] — Where a husband and wife were living together, and furniture was supplied for, and work done at, the house on the order of the wife, but the husband took part in making selections, and giving direc- tions as to the execution of the orders : — Held, that the husband was liable to pay for the goods and work, although he had expressly prohibited her from pledging his credit, and they had agreed together that she should pay for the goods and work. Jetley v. Hill, 1 C. & E. 239 —Pollock, B. Torts committed by Wife after Marriage.] — The Married Women's Property Act, 1882, does EOt abolisli the liability of a husband for his wife's wrongful acts, and the plaintiff may sue the husband and wife jointly or the wife alone for wrongs committed by her after the marriage. SeroU V, Kattenburg, 17 Q, B. D. 177 ; 55 L. J., Q, B, 375 ; 54 L, T. 649 ; 34 W, R. 543— D. Wife's Breaches of ■ Trust.] — A husband's liability for his wife's breaches of trust extends to breaches of trust arising from negligence, and is not confined to losses caused by her active misconduct. Bahin v. Hughes, 31 Ch. D. 390 ; 55 L, J., Ch, 472 ; 54 L. T, 188 ; 34 W, R. 311— C, A, Money paid by Husband for Wife after Mar- riage.] — Before the coming into operation of the Married Women's Property Act, 1882, a husband in a court of equity might make his wife a de- fendant to a suit respecting her sepaiate estate, and might obtain a decree against her for breach of any contract, whereby she had intended to bind the same, and that statute has not deprived a 915 HUSBAND AND WIFE. 916 husband of any right or remedy, to which, if it had not been passed, he would have been en- titled as against his wife in respect of her sepa- rate estate : and therefore it is now competent to a husband to maintain an action against his wife, and to charge her separate estate for money lent by him to her after their marriage, and for money paid by him for her after their marriage at her request made before or after their marriage. Butler v. Butler, 16 Q. B. D. 374 ; 55 L. J., Q. B. 55 ; U L. T. 591 ; 34 W. R. 132— C. A. Liability for Costs — ^Action by Executrix and Husband — Liquidation.] — A married woman, be- fore the Married Women's Property Act, 1882, brought an action as executrix, and her husband was joined as co-plaintiff. While the action stood for trial, the husband filed a petition for liquidation, and obtained his discharge. The action was subsequently dismissed with costs on default of appearance by the plaintiffs : — Held, that the husband was not exonerated by his dis- charge in the liquidation from his liability to have judgment given against him with costs, as the action was not rendered defective by his going into liquidation. Vint v. Hudspeth, 30 Ch. D. 24 ; 54 L. J.. Ch. 844 ; 52 L. T. 744 ; 33 W. K. 738— C. A. Custody of CMldren.] — See Infant. VI. CONTRACTS BETWEEN HUSBAND AND WIFE. Wife's Conveyance — Specific Performance of.] — A married woman was entitled by an ante- nuptial settlement to a jointure rent-charge after her husband's death secured upon his real estates in Ireland. The wife having left him, the hus- band commenced a suit for restitution of con- jugal rights ; with a view to a compromise by an agreement for separation a document was drawn up and signed by the husband, which stipulated that the wife should release part of her jointure. The wife signed this document with a qualifica- tion that no further steps were to be taken in the matrimonial suit, but it was not stayed or dis- missed. A deed was prepared to carry out the terms of the compromise and was executed by the husband, but the wife refused to execute it or to return to her husband, and the husband afterwards died : — Held, that the wife was not, when she signed the document, in all respects in the same position as a feme sole, and that even if any final agreement had been come to she would not have been bound by it, there having been no acknowledgment as required by 4 & 5 Will. 4, ■c. 92, ss. 68,71 ; and that specific performance of the agreement to release her jointure could not be decreed against her. Hunt v. Hunt (4 D., F. & J. 221 ; and Besant v. Wood (12 Ch. D. 605), com- mented on by the Earl of Selborne, L. C. Cahill V. CaJiill, 8 App. Cas. 420 ; 49 L. T. 605 j 31 W. B. S61— H. L. (Ir.) Power of Wife to contract without Interven- tion of Trustee.] — A husband and wife having taken out cross-summonses against each other for assaults, entered into a verbal agreement with each other to withdraw the summonses and to live apart, the husband allowing the wife a weekly sum for maintenance, and the wife in- demnifying the husband against any debts she might contract. An action having been brought in the county court by the wife against her husband for six weeks' arrears of maintenance under the agreement : — Held, that the husband and wife had power to contract, without the intervention of a trustee, to live apart, in con- sideration of their agreeing not to take legal proceedings against one another, and that the action was maintainable. McGregor v. Mc- Gregor, 21 Q. B. D. 424 ; 57 L. J., Q. B, 591 ; 37 W. R. 45 ; 52 J. P. 772— C. A. Affirming 58 L. T. 227— D. VII. GIFTS TO HUSBAND AND WIFE. Unity of Person of Husband and Wife.]— The rule of construction whereby, under a gift to a husband and wife and a third person, the hus- band and wife take only one moiety between them, has not been altered by the Married Women's Property Act, 1882. A testator by his will made in 1887, directed that a share of his residuary estate should be divided between his " sister M. B., D. B., her husband, and H. B., her step-daughter, in equal parts." M. B. and D. B. were married previously to the commencement of the Married Women's Property Act, 1882 : — Held, that M. B. and D. B. each took one-fourth, and H. B. one-half of the share, the one-fourth of M. B. being her separate property according to the act. Jupp, In re, Jwpp v. Bucliwell, 39 Ch. D. 148 ; 57 L. J.. Ch. 774 ; 59 L. T. 129 ; 36 W. R. 712— Kay, J. A testatrix, by her will, dated in 1880, gave her residuary personal estate " to C. J. M., and J. H. and E. his wife," to and for their own use and benefit absolutely, and appointed C. J. M., and J. H. and E. H. his wife, her executors. The testatrix died in 1883, after the commencement of the Married Women's Property Act, 1882. J. H. and E. H. were married in 1864 ;— Held, that as the wiU was made before the Married Women's Property Act came into operation, it must be construed in accordance with the law at that time, and that the three residuary legatees were entitled to the personal estate as joint tenants, G. J. M. taking one moiety, and J. H. and E. H., his wife, taking the other moiety between them, J. H. in his own right, and his wife for her separate use. March, In re, Mander v. Harris, 27 Ch. D. 166 ; 54 L. J., Ch. 143 ; 51 L. T. 380 ; 32 W. E. 241— C. A. How the court would have construed the gift if the will had been made after the Married Women's Property Act, 1882, came into opera- tion, quaere. Ih. Ante-nuptial Parol Agreement.] — By a parol ante-nuptial agreement in 1879 it was agreed that the intended wife should retain 1,400Z. as her separate property. The money was paid into a bank in her maiden name, and for two years after the marriage she received the interest with her husband's acquiescence, and she afterwards drew out the principal. The money was claimed by the trustee in liquidation of the husband : — Held, that it was unnecessary to decide whether s. 4 of the Statute of Frauds, or the doctrine of part performance, applied to the case, because the transaction amounted to a gift by the hus- 917 HUSBAND AND WIFE. 918 band to the wife of the money, -which thns became her separate property, and therefore the husband was a trustee for the wife, and his trustee in liquidation was not entitled to the money. Whitehead, In re, Whitehead, Use parte, U Q. B. D. 419 ; 54 L. J., Q. B. 240 ; 52 L. T. 597 ; 33 W. E. 471 ; 49 J. P. 405— C. A. Separate Estate — Beceipt by Hnsband — Pre- sumption of Gift.]— A testator, who died in 1860, bequeathed a portion of the residue of his per- sonal estate to his daughter, a married woman, for her separate use. Shares in certain com- panies were allotted to her in respect of this bequest, which shares were transferred by the executor of the will into the name of her hus- band. In 1862 a deed of release was given to the executor, which was executed both by the husband and the wife. The testator's daughter and her husband lived together on afEectionate terms until 1884, when the husband died, having by his will bequeathed to his wife a legacy, and given her a life interest in all his property. During the whole of the time from 1860 to 1884 the husband received the dividends on the shares. He kept very careful books of account, from which it appeared that he did not pay the dividends to his wife, although he did pay to her the dividends of certain other property, which also belonged to her for her separate use. Before 1862 the shares were always referred to in the books as having originally belonged to the wife, but this mode of reference was discon- tinued after that date. The wife died in 1884, a few days after her husband, and the question was, whether the shares, which still remained in specie, formed part of her estate or of that of her husband : — Held, that the mere transfer of the shares into the name of the husband was not per se evidence of a gift thereof to him ; that the burden lay upon those who represented him to show that the wife had given him the shares, which burden they had not discharged ; and that, therefore, the shares must be treated as forming part of the wife's estate. Curtis, In re, Hawes v. Curtis, 52 L. T. 244— Kay, J. By the law of Scotland, as well as by that of England, a married woman may make an effec- tual gift of her separate income to her husband ; with this difference, that by Scotch law she has the privilege of revoking the donation, even after her husband's death, and reclaiming the subject of her gift in so far as it had not been consumed. The same circumstances which are in England held to imply donations between husband and wife are sufficient to sustain a similar inference in Scotland. Edward v. Cheyne, 13 App. Gas. 385— H. L. (So.) VIII. WIFE'S PEOPEETY, EIGHTS AND LIABILITIES. 1. EQUITY TO A SETTLEMENT. Debt of Husband to Testator — Wife's share in Eesidne — Seduction of Debt from Wife's share.] — A testator bequeathed to his married daughter after the death of his wife, a share of the residue of his real and personal estate. The daughter's husband owed the testator 725Z., a sum equal to or in excess of her share of residue. There were six children of the mar- riage. The daughter had about 70Z. a year derived from an uncle, for her life, and remain- der to her children, and her husband had no private means, and made only some 60Z. a year by his business. The testator left six children him surviving. He died in 1877 : — Held, the case not coming within the Married Women's Property Act, 1882, that although the executors had a right to set ofE the debt due from the hubband against the share given to the wife, yet as the claim of the husband, if there had been no debt, would have been subject to the wife's equity to a settlement, which would therefore have been prior to the husband's claim, the wife's equity was also prior to the executors' right of retainer. Knight v. Knight (18 L. K., Eq. 487) distinguished. Briant, Tn re, Poulter V. Shaeltel, 39 Ch. D. 471 ; 57 L. J., Ch. 953 ; 59 L. T. 215 ; 36 W. R. 825— Kay, J. Desertion — Sale of Leaseholds.] — A husband entitled to leaseholds in right of his wife deserted her and their children, and for eight years contributed nothing towards her or their support, except the rents of the leaseholds. During the desertion the leaseholds were sold by the wife for 250Z. to a purchaser, who expended the greater part of the proceeds upon the main- tenance of the wife and children. In an action by the husband against the wife and the pur- chaser to set aside the sale and recover the lease- holds or the proceeds : — Held, that, under her equity to a settlement, the wife was entitled to have the entire proceeds of the sale secured to herself, and such proceeds having practically been expended for her benefit, the action must be dismissed with costs. Boxall v. Soxall, 27 Ch. D. 220 ; 53 L. J., Ch. 838 ; 51 L. T. 771 ; 32 W. K. 896— Kay, J. Amount to be Settled — Misconduct of Hus- band.] — A wife was entitled to about 1,500Z. The husband had disregarded an order of the court for restitution of conjugal rights, and stated that he and his wife should not again live together : — Held, that the conduct of the husband amounted to aggravated misconduct, and that under all the circumstances of the case the whole fund was to be settled on the wife and children. Reid v. Reid, 33 Ch. D. 220 ; 55 L. J., Ch. 756 ; 55 L. T. 153 ; 34 W. E. 715— Stirling, J. See also Fowle v. Drayeott, post, col. 936. Bankruptcy of Husband.] — In an action by a married woman for her equity to a settle- ment, where the husband was an undischarged bankrupt, but was living with his wife, and con- tributed something out of his earnings to her support, the court directed two-thirds only of the wife's fund to be settled upon her. Callow V. Callow, 55 L. T. 154— Stirling, J. See Beau- pre's Trusts, In re, post, col. 924. Domicil — Change by Eesidence — Beverter to Domicil of Origin.] — In 1855 a domiciled Manx- man came to England and married an E nglish- woman, and resided in England for twenty years. At the date of the marriage the w if e was entitled to a vested reversionary interes t in a legacy which fell into possession in 188 5. In 1875 the husband and wife returned to the Isle of Man, where the husband carried on business till 1878, when he became insolvent, and exec u ted 919 HUSBAND AND WIFE. 920 a deed of assignment of all his property, including his wife's interest in the legacy, for the benefit of his creditors. In 1880 the parties returned to England, where they resided till 1882, when the husband went to Mexico to seek employ- ment. The doctrine of a wife's equity to a settlement is unknown to Manx law : — Held, that the Manx domicil of the husband which had been lost by the twenty years' residence in England, reverted on his return to the Isle of Man, that nothing happened afterwards to re- establish the English domicil, and that as the domicil was therefore Manx, the wife's equity to a settlement could not be asserted, Mardand, In re, 55 L. J., Ch. 581 ; 54 L. T. 635 ; 34 W. fl. 540— Kay, J. 2. DOWER. Interest in land — Gift to Wife of Income of Proceeds of Land.] — -A testator having entered into a contract for the sale of real estate to a purchaser, died before completion. By his will he devised all his real estate to trustees for sale, and of the proceeds to invest 1,OOOZ. and pay the income thereof to his widow. He then gave various other legacies out of the proceeds, but made no disposition of , the ultimate re- sidue. After the testator's death it was found that no title could be made to a, material part of the property comprised in the contract, and thereupon the trustees of the will rescinded the contract : — Held, that the gift to the widow of the income of part of the proceeds of the real estate was a gift to her of an " interest in land " within s. 9 of the Dower Act, 3 & 4 Will. 4, c. 105, and that, therefore, she was not entitled to dower out of any part of her husband's estate. Thomas, In re, Tlwrnas v. Howell, 34 Ch. D. 166 ; 56 L. J., Ch. 9 ; 55 L. T. 629— Kay, J. Marriage Settlement — Provision for intended Wife and Issue.]— In an ante-nuptial settlement any provision for the intended wife in the event of her surviving her husband, will bar her dower, if such intention be expressed or appear clearly from the construction of the deed. But pro- visions for the wife to her separate use for life, for the maintenance of herself and her children, in the event of the husband failing in his credit or becoming a bankrupt or insolvent, and inter alia a proviso that the trustees should, whenever they might think fit or expedient, that is to say — in the event of the husband becoming embarrassed in his circumstances, or there should arise some good and sufficient reason therefor, so as to render a sale consistent with, and in aid 6i, the trusts of the settlement, and provision for the wife and the issue of the marriage, realize out of the property of the husband a bond for 1,000^., executed to them, and invest the proceeds for the wife to her separate use for life, and after her death for the issue of the marriage, pi-ovided that the amount of the bond should not be levied after the husband's death without the consent in writing of the wife : — Held, not a bar to the wife's right to dower. O'Rorhe v. O'Rorke, 17 L. R., Ir. 153— M. R. 3. POLICIES OF INSURANCE. For "Wife and Cliildren" — Joint Tenancy.] -A policy was taken out on the life of the assured for the benefit of his wife and children : — Held, that his widow and children took as joint tenants. Mellor's Policy Trunts, In re (7 Ch. D. 200), explained ; Adam's Policy Trusts, In re (23 Ch. D. 525), dissented from. Seyton, In re, Seyton v. Satterthwaite, 34 Ch. D. 511 ; 56 L. J., Ch. 775 ; 56 L. T. 479 ; 35 W. K. 373— North, J. Appointment of Trustees — Petition.] — A peti- tion (presented since the coming into operation of the Married Women's Property Act, 1882), for the appointment of trustees of the proceeds of a life policy effected by a husband, under the provisions of the Married Women's Property Act, 1870, for the benefit of his wife and children, ought to be entitled in the matter of the act of 1882. Sovtar's Policy Trust, In re, 26 Ch. D. 236 ; 54 L. J., Ch. 256 ; 32 W. K. 701— Pearson, J. Direction to Exchange Policy for One fully Paid up. ] — The defendant effected a policy on his life for the benefit of his wife and children under s. 10 of the Married Women's Property Act, 1870. He became bankrupt and mentally deranged, and was unable to pay the premiums. By the rules of the insurance society the policy could be exchanged for a fully paid-up policy of smaller value, and thus preserved from lapsing. The wife and only child of the defendant brought this action, claiming the appointment of a trustee of the policy, and that such trustee might be authorised to exchange the policy for one, fully paid up : — Held, that the court under its general jurisdic- tion had power to appoint two trustees ; and judgment was given to that effect, and otherwise as claimed. Schultze v. Sehultze, 56 L. J., Ch, 356 ; 56 L. T. 231— Stirling, J. Policy in Wife's Name — ^Voluntary Settlement of — Payment of Premiums.] — On 5th November, 1844, a policy of insurance for 2,000Z. was effected upon the life and in the name of B. the wife of A. By a post-nuptial settlement dated 27th November, 1844, reciting that B. was desirous of making provision for her husband and children, and that A. had agreed to join in the deed for the purpose of assuring "aU his interest, if any," in the policy, A. and B. as- signed to C. and D. the policy and all sums pay- able thereunder upon trust to invest the same and pay the income to A. and his assigns during his life and after his decease to divide the trust funds equally among the children of A. and B. The settlement contained no power of revocation. A. predeceased his wife, having paid all pre- miums during his lifetime. Upon the death of B., the question arose whether the policy moneys were subject to the trusts declared by the settlement : — Held, that the policy was in- tended by the husband to be and was the sepa- rate property of the wife at the date of settle- ment, in which the husband concurred only for conformity and to bind such interest, if any, as he had ; that the settlement was valid and that the policy moneys were bound by the trusts of the settlement. Winn, In re. Reed v. Wiim, 57 L. T. 382— Kay, J. For Benefit of Wife— Contingent Interest of Husband— Withdrawal.]— A policy of insurance on the life of a husband for the benefit of hi» 921 HUSBAND AND WIFE. 922 wife was, in 1876, effected with an insurance •company which carried on business at New York, through their branch office in London. The application for the policy was made by him on behalf of his wife. The premiums were made payable in London. By the policy the company promised to pay the amount assured to the wife ior her sole use, if living, and, if she were not living, to the children of the husband, or, if there should be no such children, to the executors or assigns of the husband, at the London office. The policy also provided that, on the completion of a period of ten years from its issue, provided it should not have been previously terminated by lapse or death, the legal owner should have the option of withdrawing the accumulated reserve and surplus appropriated by the com- pany to the policy. The husband paid the pre- miums until July, 1883, when he filed a liquida- tion petition under the Bankruptcy Act, 1869. In 1884 he obtained his discharge. After 1883 the wife paid the premiums out of her separate «state. In 1886 the wife exercised the right of withdrawal, and the company paid 2,9592. in respect of the policy : — Held, that, even if the sum thus paid did not by virtue of the policy belong to the wife for her separate use, the husband's contiagent interest in it at the time tvhen he obtained his discharge was a mere pos- sibility, and that, consequently, it did not pass to the trustee in the liquidation. Sever, Ex parte, Suse, In re, 18 Q. B. D. 660 ; 56 L. J., Q. B. 552— C. A. 4. SEPARATE ESTATE. a,. What is — Creation of. Freeholds — Agreement signed by Husband only.] — In order that the fee simple of an in- tended wife may be affected with a trust for her separate use by an agreement made between the intended husband and wife before marriage, the agreement must be in writing and signed by the ■vrafe as well as by the husband ; if it is signed by the husband alone, it is, owing to the Statute of Frauds, s. 7, invalid as a declaration of trust for separate use as to the fee simple, a husband having in his wife's land only an estate for the joint lives of himself and his wife with a possible estate by the curtesy. Dye v. Dye, 13 Q. B. D. 147 ; 53 L. J., Q. B. 442 ; 51 L. T. 145 ; 33 W. K. 2— C. A. Judicial Separation — Effect of — Property sub- .sequently acquired.] — A wife who has obtained a decree for judicial separation is to be con- sidered as a feme sole with respect to such pro- perty only as she may acquire or which may come to or devolve upon her a,fter the decree : s. 25 of the Divorce and Matrimonial Causes Act, 1857 (20 & 21 Vict. c. 85), not applying to pro- perty to which the wife was entitled in posses- sion at the date of the decree. Coohe v. Fuller (26 Beav. 99) distinguished. Waite v. Morland, 38 Ch. D, 135 ; 57 L. J., Ch. 655 ; 59 L. T. 185 ; 36 W. B. 484— C. A. Wife Trading Separately from Husband — Oeneral Power of Appointment.] — By the Married Women's Property Act, 1882 (45 & 46 Vict. 0. 75), s. 1, sub-s. 5, "Every married woman carrying on a trade separately from her husband shall, in respect of her separate pro- perty, be subject to the bankruptcy laws in the same way as if she were a feme sole " : — Held, that the expression " separate property " includes only that which would, if the woman was un- married, be her " property," and does not there- fore include a general power of appointment by deed or will of which she is the donee, but which she has not exercised, and a married woman who has traded separately from het husband and who has been adjudicated a. bankrupt, cannot be compelled to execute a deed exercising such a power in favour of the trustee in the bankruptcy. Gilchrist, Exparte, or Armstrong, Ex parte, Armstrong, In re, 17 Q. B. D. 521 ; 55 L. J., Q. B. 578 ; 55 L. T. 538 ; 34 W. E. 709 ; 51 J. P. 292 ; 3 M. B. R. 193 — 0. A. — — Marriage before 1870 — Earnings daring Coverture,] — A lady, who was carrying on the business of a ladies' school, was married in 1862. A settlement was executed on the marriage, which did not in any way refer to or affect to deal with the business carried on by her or the goodwill thereof. After the marriage she con- tinued to carry on the school. Her husband lived in the house, but he did not take any part in the business, nor assist in any manner in the tuition. The prospectuses, &c., of the school were in her name. Out of the earnings of the school the wife contributed to, if she did not substantially pay, the household expenses. Some of the earnings were invested by the husband in his own name, and another portion was invested in the purchase of the lease of the premises in which the school was carried on. The husband died in 1877. He did not in any way affect to deal with the school property by his will, and he had not ostensibly by any act of his treated it as his own property. Upon his death, the question arose between the executors of his will, under which his infant children were interested, and his widow, who survived him, as to who was entitled to the goodwill, property, and effects of the business : — Held, upon the evidence, that the business was carried on by the wife separately from her husband within the meaning of s. 1 of the Married Women's Property Act, 1870 ; that it made no difference that the marriage took place before the passing of that act, and that the goodwill, stock, and effects belonging to the business, and all investments out of the earnings of the business made since the passing of the act, were the property of the wife. Dearmer, In re, James v. Dearmer, 53 L. T. 905 — Kay, J. Settlement on First Marriage — Life Estate — General Power of Appointment — ^Ee-marriage.] — By a settlement made in 1878, upon a former marriage of Mrs. P., a fund was settled in trust for her during her life, and during her said intended coverture, for her separate use without power of anticipation ; and then upon trust, in the events which happened, for such persons- as she should during coverture by deed or will appoint, and when not under coverture by deed or will appoint, and, in default of appointment, upon trust for her executors, administrators, and assigns. Mrs. P., having survived her former husband, married again aiter the passing of the Married Women's Property Act, 1882, without having exercised her power of appointment under the settlement :— Held, that the operation 923 HUSBAND AND WIFE. 924 of the Married Women's Property Act was not excluded by s. 19, and that the act applied so far as to add the incident of separate use to her interest under the settlement, and that she and her husband were entitled to have the fund transferred to them. Onslow, In re, Plowden v. Oayford, 39 Ch. D. 622 ; 57 L. J., Ch. 940 ; 59 L. T. 308 ; 36 W. R. 883— Stirling, J. Possession of Husband as Trustee — Marriage Settlement made Abroad.] — The rule that a husband is a trustee for his wife of her separate property when no other trustee has been ap- pointed, applies to that which becomes her separate property by virtue of a marriage con- tract entered into in a foreign country. When, therefore, such property is in the possession of a husband at the commencement of his bankruptcy it does not pass to his trustee. Sibeth, Ex parte, Sibeth, In re, 14 Q. B. D. 417 ; 54 L. J., Q. B. 322 ; 33 W. R. 556— C. A. Bequest — Words creating.] — A bequest to a married woman of real and personal property "for her absolute use and benefit," is sufficient to create a separate estate. Kegiis v. Jones, 1 C. & E. 52— Williams, J. Bestraiut on Anticipation — Election.] — In the case of a married woman, to whom an interest with a restraint on anticipation attached thereto is given by the same instrument as that which gives rise to a question of election, the doctrine of election does not apply, as the value of her interest in the property to be re- linquished by way of compensation has, by the terms of the instrument, been made inalienable. Wheatley, In re. Smith v. Spence, 27 Ch. D. 606 ; 54 L. J., Ch. 201 ; 51 L. T. 681 : 33 W. R. 275— Chitty, J. Restraint on Anticipation — Eight to Capital.] — A testator having a general power of appointment over a settled fund, appointed that a sum of 1,500Z. should be raised and paid to his daughter, who was a married woman, absolutely, for her separate use, without power of anticipa- tion ; and appointed that one-fourth of the residue of the fund should be held upon trust for the same daughter absolutely for her separate use without power of anticipation : — Held, that the daughter was not entitled to payment of the capital of one-fourth of the residue. Grey's Settlements, In re, Acason v. Greenwood, 34 Ch. D. 712 ; 56 L. J., Ch. 511 ; 56 L. T. 350 ; 35 W. R. 560— C. A. Devise of Freeholds — Restraint on Alienation.] — A testator gave, devised, and bequeathed all his freeholds and leaseholds to two of his daugh- ters equally between them as tenants in common to and for their several and respective sole and separate use and benefit absolutely, and stated that it was " his wish and request that they should not sell or dispose of any part of his said freehold or leasehold premises." In a subsequent part of his will , there was a bequest of a sum of stock to trustees in trust to pay the income to another daughter for her life, "for her own sole and separate and inalienable use and benefit, and without power of anticipation." The two daughters, one of them being married, contracted to sell some of the freehold property. On sum- mons under the Vendor and Purchaser Act on behalf of the purchaser : — Held, that the words of the devise, even if they stood alone, would have been insufficient to operate as a restraint on anticipation ; that the cases as to precatory trusts did not apply, as there was no trust im- posed in favour of some other person ; that the subsequent bequest strengthened this construc- tion ; and that a good title was shown as to the moiety of the married woman. Sutohings to Burt, In re, 59 L. T. 490— C. A. Reversing 58 L. T. 6— Kay, J. Marriage Before, Punds Accrued after 1882.] — Property to which at the time of the com- mencement of the Married Women's Property Act, 1882, a woman married before the act was entitled subject to a life estate, but not for her separate use : — Held, not to become her separate estate by falling into possession after the com- mencement of the act. Reid v. Reid, 31 Ch. D. 402 ; 55 L. J., Ch. 294 ; 54 L. T. 100 ; 34 W. K. 332— C. A. If a woman married before the commencement of the Married Women's Property Act, 1882, has before the commencement of the act acquired a title, whether vested or contingent, and whether in reversion or remainder, to any property, such property is not made her separate estate by s. 5 of the act, though it falls into possession after the act. Baynton v. Collins (27 Ch. D. 604) overruled. lb. Property to which a married woman was, at the commencement of the Married Women's Property Act, 1882, entitled for a vested interest in remainder, and which, on the 4th of October, 1884, became an interest in possession, is not property " her title to which has accrued after the commencement of the act " within the meaning of s. 5. TwcTier, In re, Emcmvel v. Parfitt (54 L. J., Ch. 874) and Adames's Trust, In re (54 L. •!., Ch. 878) followed. Baynton v. Collins (27 Ch. D. 604) not followed. Hobson, In re, Webster v. BieJtards, 55 L. J., Ch. 300 ; 34 W. R. 195— Chitty, J. N., a lady married in 1860, became entitled, as one of the next of kin of C, who died without children in 1885, to a share of a fund settled by a deed of 1830, ia trust for C. for life, and after her death to her children, and in default of chil- dren, for such person or persons as should, on the failure of children, be the next of kin of C. under the Statute of Distributions : — Held, that N.'s title accrued before the Married Women's Property Act, 1882, and that she did not take a separate estate under s. 5 of that act, in her share, but that it went to the assignee in bank- ruptcy of her husband, subject to her equity to a settlement. Beampre's I'rusts, In re, 21 L. B., It. 397— C. A. A married woman, married before the date when the Married Women's Property Act, 1882, came into operation, is entitled to receive as her separate property funds to which her title ac- crued in possession after that date, although it accrued in reversion or remainder before that date. Baynton v. Collins, 27 Ch. D. 604 ; 53 L. J., Ch. 1112 ; 51 L. T. 681 ; 33 W. B. 41— Chitty, J. A testator, who died in 1875, devised his real estate to his wife for life, with remainder to his children. One daughter married in 1878, and the tenant for hfe died in 1884 i— Held, that under the operation of s. 5 of the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), 925 HUSBAND AND WIFE. 926 the married woman's share in the estate was her separate property, ^nd could be disposed of by her without the concurrence of her husband. Thompson and Ourzon, In re, 29 Ch. D. 177 ; 54 L. J., Ch. 610 ; 52 L. T. 498 ; 33 W. E. 688— Eay, J. Property to which a married woman was, at the commencement of the Married Women's Property Act, 1882, entitled for a vested interest in remainder, and which afterwards became an interest in possession, is not property " her title to whiph has accrued after the commencement of the act " within the meaning of s. 5. TuiOker, In re, Emanuel v. Parfitt, 54 L. J., Ch. 874 ; 52 L. T. 923 ; 38 W. R. 932— Pearson, J. Section 5 of the Married Women's Property Act, 1882, applies only to property of a married- woman her title to which accrues for the first time after the commencement of the act ; it does not, therefore, include an interest to which she was contingently entitled before, but which falls into possession after the act. Adames^ Trusts, In re, 54 L. J., Ch. 878 ; 53 L. T. 198 ; 33 W. R. 834— Kay, J. Property to which a woman, married before the passing of the Married Women's Property Act, 1882, has acquired a contingent title before the act, does' not become her separate pro- perty by its falling into possession after the act. Tench's jPrusts, In re, 15 L. E., Ir. 406 — V.-C. Marriage and Accrual before 1882.] — A woman, being executrix and residuary legatee, married in 1880. She had discharged all her duties qu§, executrix, save that she had not obtained pay- ment of a sum of money which fell due to her testator's estate in September, 1879, for which sum she brought an action in 1883 : — Heldj that the wife's title qua legatee accrued before the Married Women's Property Act, 1882, came into operation, and that the husband was en- titled to this money jure mariti. Edwards v. Edwards, 1 C. & E. 229— Mathew, J. Protection Order — Cohabitation resumed.] — See Emery's Trust, In re, post, col. 935. Question as to Property — Snquiry by Begis- trar.] — A wife wbo had obtained a decree for a judicial separation, claimed certain furniture as her separate property, but her husband denied that she had a title to it : — The court made an order under s. 17 of the Married Women's Pro- perty Act, 1 882, directing the registrar to enquire whether the furniture formed part of the wife's separate estate. PMllips v. Phillips, 13 P. D. 220 ; 57 L. J., P. 76 ; 59 L. T. 183 ; 37 W. R. 224 ; 52 J. P. 407— Butt, J. b. Liability of. Property must exist at Time of making Con- tract.] — The contract entered into by a married woman "to bind her separate property," referred to in s. 1, sub-3. 4, of the Married Women's Property Act, 1882, is a contract entered into at a time when she has existing separate property. If the married woman commits a breach bf such a contract, and a judgment is recovered against her for the breach, the judgment can be enforced against any separate property which she then has. But s. 1, sub-s. 4, does not enable a married woman who has no existing separate property to bind by a contract any separate property which she may possibly thereafter acquire. Shake- spear, In re, DeaMn v. Laliin, 30 Ch. D. 169 ; 55 L. J., Ch. 44 ; 53 L. T. 145 ; 33 W. R. 744— Pearson, J. Onus of Proof.]— S. 1, sub-s. 2, of the Married Women's Property Act, 1882, does not make a married woman capable of rendering herself liable in respect of her separate pro- perty on any contract unless she has some separate property at the time the contract is made. In an action against a married woman to recover the price of goods sold and delivered to her : — Held, that the onus was on the plaintiff to show that the defendant had separate pro- perty at the time she made the Qontract. Pal- User V. Gumey, 19 Q. B. D. 519 ; 56 L. J., Q. B. 546 ; 35 W. R. 760 ; 61 J. P. 520— D. Married Women's Property Act, 1882, s. 1, sub-s. 4, not Betrospective.] — Sub-section 4 of section 1 of the Married Women's Property Act, 1882, which enacts that a married woman's con- tract with respect to her separate property shall bind not only the separate property to which she is entitled at the date of the contract, but all which she shall subsequently acquire, is not retrospective, and does not apply to a married woman's engagements made before the act. Roper, In re, Roper v. Bonoastcr, 39 Ch. D. 482 ; 58 L. J., Ch. 215 ; 59 L. T. 203 ; 36 W. R. 750— Kay; J. Sub-s. 4 of s. 1 of the Married Women's Pro- perty Act, 1882, is not retrospective, and, there- fore, in an action on a contract made by a married woman before the passing of that act, judgment cannot be ordered in. such terms as to be available against separate property to which the defendant became entitled after the date of the contract. Turnbull v. Forman, 15 Q. B. D. 234 ; 54 L. J., Q. B. 489 ; 53 L. T. 128 ; 33 W. R. 768 ; 49 J. P. 708— C. A. Separate ITse not arising till after Contract.] — By a post-nuptial settlement made in pur- suance of ante-nuptial articles, certain policies of insurance on the life of the husband were assigned to trustees upon trust to receive the money and pay the income to the wife duriug^ her life for her separate use, independently of any future husband whom she might marry. There was no restraint on anticipatioi.. During the life of her first husband the wift made pro- missory notes in favour of the plaintiff, and the plaintiff, the first husband being still alive, brought an action claiming a charge on the policies : — Held, that the trust for separate use did not arise till after the death of tlie husband, and that as the contracts of a married woman en n only be enforced against property which formed part of her separate estate at the date of t':e contract, the action could not be ramntained. Oaffee, In re (1 Mac. & G. 541), Mdynciij-'s Estate, In re (6 L. R., Eq. 411), a.irl Stiiran v. Corp (13 Ves. 190), discussed. IC'ig v. Lwax, 23 Ch. D. 712 ; 53 L. J., Ch. 64 ; 49 L. T. 21i; f 31 W. R. 904— C. A. Marriage during Pending Proceedings.] — Where a woman married when proecahngs were pending between her and others, whicli resulte.l «27 HUSBAND AND WIFE. 928 .after her marriage in a statutory debt being created : — Held, that her separate property was •chargeable with the payment of such debt. London {Mayor) v. Broolte, 1 C. & E. 169 — FoUook, B. Contract after 1883— Restraint on Anticipa- -tion.] — A married woman, having either no separate property, or only separate property subject to a restraint on anticipation, who insti- tutes divorce proceedings after the passing of the Married Women's Property Act, 1882, cannot be deemed under the act to have entered into a contract, with respect to her separate property, for payment of the costs of her solicitor incurred in the divorce proceedings. Harrison v. Harrison, 13 P. D. 180 ; 58 L. J., P. 28 ; 60 L. T. 39 ; 36 W. K. 748— C. A. Action brought before, Order of Reference by Consent after Act.] — S. 1, sub-sections 3 and 4, of the Married Women's Property Act, 1882, have not a retrospective operation so as to include contracts entered into by a married woman before the date of the commencement of the act. But an order made after the commence- ment of the act by consent in an action by a •creditor against a married woman in respect of her contract before the act, by which order all •questions under the contract were referred to an arbitrator, and the parties bound themselves to abide by, obey, perform, and keep the award, is an agreement by the married woman after the commencement of the act, within s. 1 (3), and therefore by s. 1 (4) any separate estate which she had at or after the date of such agreement is liable to pay the amount found by the award to be due from her under the contract. Conolan , 27 Ch. D. 632 ; 54 L. J., Ch. 123 ; 51 L. T. 895— Ghitty, J. Settlement made before 1882 — Restraint on Anticipation.] — S. 19 of the Married Women's Property Act, 1882, so far as it affects the validity of a settlement or an agreement for a settlement as against the creditors of a married woman, is not retrospective. Therefore execu- tion cannot issue against property settled before the commencement of the act to the separate use of a married woman without power of anticipa- tion. Smith V. Whitloch, 55 L. J., Q. B. 286 ; 34 W. R. 414— D. Foat-nnptial Settlement before 1882 — Con- tract during Coverture.] — By a post-nuptial ■settlement, made before the Married Women's Property Act, 1882, property devised by will to a married woman for her separate use with- out restraint against anticipation was limited to her for life for her separate use without power of anticipation, remainder to the husband for life, remainder to the children. The wife after the act and during coverture made a promissory note in favour of the plaintiffs, and after the death of the husband the plaintiffs obtained judgment upon the note against the widow and an order for the appointment of a receiver of the rents and profits of the property in settle- ment : — Held, that upon the true construction of the Act, ss. 1, 5, and 19, the property in settlement was not liable to satisfy the judg- ment, and that the order appointing the receiver must be discharged. Beckett v. Tasher, 19 Q. B. D. 7 ; 56 L. T. 636 ; 36 W. K. 158— D. TTndertaking as to Damages. ] — Where an in- junction is wrongly granted, an undertaking as to damages given to the plaintiff is equally en- forceable whether the mistake was in point of law or in point of fact. In such a case a hus- band-defendant is not prohibited from enforcing an undertaking given by a wife-plaintiff by reason of the provision in the Married Women's Property Act, 1882, s. 12, debarring him from suing his wife in tort. A married woman who has given an undertaking as to damages since the Married Women's Property Act, 1882, will be dealt with on the same footing as that on which a married woman's next friend who had given such an undertaking would have been dealt with before the act. Hunt v. Himt, 54 L. J., Ch. 289— Pearson, J. Costs of Proceedings improperly Instituted — Restraint on Anticipation.] — A married woman who, under a wiU, was entitled to income for her separate use, with a restraint on anticipation, instituted (without a next friend) against the trustees proceedings in the course of which she took out a summons which was refused : — Held, that the restraint on anticipa- tion did not prevent the court from giving the trustees liberty to retain their costs of the pro- ceedings out of the married woman's income. Andrews, In re, Edwards v. Dewar, 30 Ch. D. 159 ; 64 L. J., Ch. 1049 ; 53 L. T. 422 ; 34 W. R. 62 — Pearson, J. See next case. A married woman by her next friend, having brought in 1882 an action for administration of a trust fund, to the income of which she was entitled for her separate use without power of anticipation, the court, on further consideration in 1884, held the action to have been unnecessary and improper, and the next friend was ordered to pay the defendants' costs. The defendants being unable to find the next friend, an order was made giving the trustees liberty to retain the costs out of the income of the trust fund already due and to become due to the married woman : — Held on appeal, that no such order could be made, for that the court has no jurisdic- tion to disregard the restraint on anticipation on the ground that it appeared to the court to be just to do so ; and that no income which did not accrue due till after the action on which the claim against the separate estate depended, viz., the improper institution of the suit, could be at- tached to meet the costs. Glanvill, la re, Ellis v. Johnson, 31 Ch. D. 532 ; 55 L. J., Ch. 325 ; 54 L. T. 411 ; 34 W. R. 309 ; 50 J. P. 662— C. A. Whether, if the plaintiff had been suing under the Married Women's Property Act, ] 882, without a next friend, the order could have been sup- ported, quffire. Andrews, In re (30 Ch. D. 159) observed upon. lb. Simple Contract Debt — Analogy of Statute of Limitations.] — In 1875 a married woman borrowed money from her husband upon a parol agreement to repay him the amount with interest out of her separate estate. She died in 1884, without having paid anything in respect either of interest or principal, arid without having given any acknowledgment in writing of her liability to repay the debt. After her death her husband claimed repayment : — Held, that the debt was barred by analogy to the Statute of Limitations. Norton v. Turvill (2 P. Wms. 144) explained. Hastings {Lady), In re, Hallett v. 929 HUSBAND AND WIFE. 930 Bastings, 35 Ch. D. 94 ; 56 L. J., Ch. 631 ; 57 L. T. 126 ; 35 W. R. 584 ; 52 J. P. 100— C. A. G-eneral Power of Appointment by Will- Liability of appointed Property.]— In cases not within the Married Women's Property Act, 1882, the exercise by the will of a married woman of a generaj power of appointment, whether the power be exeroiseable by deed or will, or by will only, does not make the property appointed liable to engagements entered into with her on the credit of her separate estate. Roper, In re, Roper v. Doncaster, 39 Ch. D. 482 ; 58 L. J., Ch. 215 ; 59 L. T. 203 ; 36 W. R. 750— Kay, J. Sestralnt on Anticipation — Payment to Wife under Order reversed — Lien.] — A female infant entitled under a will to a share of residuary per- sonalty contingently on her attaining twenty- one, married before — ^but came of age after — the commencement of the Married Women's Pro- perty Act, 1882. On her marriage a settlement of her property, not sanctioned under the Infants' Settlement Act, was made under which she took the first life estate with a restraint on anticipa- tion. On her coming of age the fund was paid to her under an order of the court. The Court of Appeal reversed this order and declared her liable to refund, on the ground that the fund was subject to the settlement. She refunded part, but was unable to refund the remainder, which she had spent. After this, the executors of the will paid to the trustees of the settlement an arrear of income which they had in hand : — Held, that so much of this income as accrued between the married woman's attaining twenty- one, and the order declaringher liability to refund, must be retained in part satisfaction of her liability to refund. Pihe v. Mtzgibbon (17 Ch. D. 454) distinguished. Bixon, In re, Dixon v. Smith, 35 Ch. D. 4 ; 56 L. J., Ch. 773 ; 57 L. T. 94 ; 35 W. R. 742— C. A. Devised Seal Estate — Liability of Devisee — Restraint on Anticipation.] — The liability, under the Act 11 Geo. 4 & 1 Will. 4, c. 47, of a devisee of land, who alienates the land, to the unpaid debts of the testator, is such that, on the aliena- tion, the debts become his own debts to the extent of the value of the land alienated. Con- sequently, when a woman to whom land had been devised settled it on her marriage, after the passing of the Married Women's Property Act, 1870, the first trust being for herself absolutely until the marriage, and, after its solemnization, on trust for herself for her life, without power of anticipation, with remainder on trusts for the issue of the marriage : — Held, that the testator's personal estate being insufiScient to pay his debts, the life interest of the settlor was, notwithstand- ing the restraint on anticipation, liable to make good the deficiency, to the extent of the value of the devised land ; her liability to satisfy the debts of the testator, which arose on her aliena- tion of the land by the settlement, being a debt " contracted by her before marriage," within the meaning of s. 12 of the Married Women's Pro- perty Act, 1870. Sanger v. Sanger (11 L. R., Eq. 470) and London and Provincial Banh v. Bogle (7 Ch. D. 773) followed. Hedgely, In re, Small V. Hedgely, 84 Ch. D. 379 ; 56 L. J., Ch. 360 ; 56 L. T. 19 ; 35 W. E. 472— North, J. Proceedings against. Pleading— Statement of Claim— No Appear- ance entered.] — Where a married woman Is defendant in an action on a, contract, and has made default in the delivery of a defence, the statement of claim must contain an allegation that the defendant has separate estate ; otherwise the court will refuse to make an order against the defendant on the statement of claim under Ord. XXVII. r. 11. of the Rules of 1883. Tetley v. Griffith, 57 L. T. 673 ; 86 W. R. 96— Chitty, J. Judgment under Ord. XIV — Evidence of Separate Estate.] — In an action against husband and wife to recover a debt of the wife contracted before marriage, where the marriage has taken place after the coming into operation of the Married Women's Property Act, 1870, and the Married Women's Property Act, 1870, Amend- ment Act, 1874, but before the coming into operation of the Married Women's Property Act, 1882, judgment may be entered against the wife under Ord. XIV. r. 1, making the debt and costs payable out of her separate property, with a limitation as regards execution similar to that in the form settled in Scott v. Morley (20 Q. B. D. 120), without proof of the existence of separate estate at the date of the judgment. Bowne v. Fletcher, 21 Q. B. D. 11 ; 59 L. T. 180 ; 36 W. R. 694 ; 52 J. P. 375— D. Form of Judgment.] — The proper form of judgment against a married woman under s. 1, sub-s. (2) of the Married Women's Property Act, 1882, settled by the court. Scott v. Morley, 20 Q. B. D. 120 ; 57 L. J., Q. B. 43 ; 57 L. T. 919 ; 86 W. R. 67 : 52 J. P. 230 ; 4 M. B. R. 286— C. A. When judgment was recovered against a mar- ried woman, an order was made, on the appli- cation of the plaintiff, that the judgment debtor should pay the amount due upon the judgment by instalments out of her separate estate not subject to restraint against anticipation ; or which, being so subject, was nevertheless liable to execution under s. 19 of the Married Women's Property Act, 1882. Johnstone v. Browne, IS L. R., Ir. 428— Ex. D. When judgment is obtained against a married woman, execution is limited to such separate estate as she is not restrained from antici- pating ; unless such restraint exists under any settlement or agreement for a settlement of her own property, made or entered into by herself. Bursill V. TanTier, 13 Q. B. D. 691 ; 50 L. T. 589 ; 32 W. R. 827— D. See also Gloucester- shire Banhing Company v. Phillips, post, col. 943. The plaintiff sued the defendant, a widow, as maker of a promissory note during the lifetime of her husband. The defendant pleaded that at the making of the note she was not entitled to separate property, and that she did not after- wards become possessed of or entitled to any property which she could charge, alien or dis- pose of ; that the only separate estate she possessed or was entitled to at the date of the note, and afterwards during coverture, was separate estate subject to a restraint on anti- cipation ; and that there were not, at the date of the alleged contract, or subsequently, arrears H H 931 HUSBAND AND WIFE. 932 thereof due : — Held, on demurrer, a valid defence to the action. The principle of Pike v. Mtz- gihbon (17 Oh. D. 454) has not been altered by the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75). MyUa v. Burton, 14 L. E., Ir. 258— C. P. D. Execution limited.] — Where, upon motion to enter final judgment against a married woman, she denied by affidavit having separate estate, save property settled on her marriage, with a restraint on anticipation, the court, in allowing judgment to be entered, limited execution to such separate property as she was not restrained from anticipating, unless such restraint existed under a settlement or agreement for a settlement of her ovni pro- perty made or entered into by herself. Form of Order. Meholls v. Morgan, 16 L. E., Ir. 409 — C. P. D. And see Seott v. Morley, supra. Writ of Sequestration — Form.] — The general form of a writ of sequestration against " the estate and eflfeots " of a married woman without any express limitation therein to separate pro- perty of the vrife not subject to a restraint on anticipation is correct ; but the writ can only operate on her separate property which is not so subject. Hyde v. Hyde, 13 P. D. 166 ; 57 L. J., P. 89 ; 59 L. T. 529 ; 36 W. E. 708— C. A. Inquiry as to Existence.] — A charge given by a married woman upon her separate estate is sufficient evidence of the existence of separate estate to entitle a plaintiff, with whom she has contracted, to an inquiry. London Allimwe Duoov/at Oompamy v. Kerr, 1 0. & B. 5 — Cave, J. Eeceiver— In what Cases— Judicature Act, 1873, s. 28, suh-B. 8.]— M., a married woman, by her next friend, applied to tax the bill of costs of her solicitor, incurred in a suit relating to her separate estate. After the taxing-master's certificaiie had been filed, an order was made on the application of the solicitor, directing an in- quiry of what M.'s separate estate consisted at the date of the filing of the certificate capable of being reached by the judgment and execution of the court, and appointing a person to receive it until the amount found due on taxation was paid : — Held, that this order was proper, and that it was not necessary to take separate pro- ceedings by action to enforce the demand against the separate estate. Peace and Waller, In re, 24 Ch. D. 405 ; 49 L. T. 637 : 81 W. E. 899 — C. A. - — Who Appointed— Prior Charges.]- In an action against a married woman alleged to be possessed of separate estate, no defence being delivered, the master, by his report, found that she was entitled to separate estate vested in trustees, and subject to certain charges. The report being confirmed, the plaintifi was ap- pointed receiver, without security, of the residue of the income of the separate estate, after pay- ment of the prior charges, the plaintifi under- taking to act without commission. W Oarry v White, 16 L. E., Ir. 322— Q. B. D. d. Bemoving' Bestraiut ou Anticipation. Principles on which Courts act. ] — The power given by s. 39 of the Conveyancing Act, 1881, ought not to be used indiscriminately. Jordan, In re, Kino v. Pioard, infra. S. 39 of the Conveyancing Act, 1881, confers no general power of removing the restraint on anticipation, but only enables the court to make binding some particular disposition of her property by a married woman, notwithstanding a restraint on anticipation, if the court is of opinion that such disposition is beneficial to her. Warren's Settlement, In re, 52 L. J., Ch. 928 ; 49 L. T. 696— C. A. Possibility of Issue.] — Application by husband and wife and trustees of a settlement for the re- moval of the restraint on anticipation, for the purpose of rendering the capital of the trust fund — ^which stood limited upon the death of the sur- vivor of husband and wife in trust for the children of the marriage — available for the benefit of the husband and wife, who were fifty- three and fifty years old respectively, there being no issue of the marriage, refused, chiefiy on the ground that the court ought not to assume that there would be no children, although the parties had been married for twenty-eight years, and had never had any children, and there was medical evidence that it was almost, if not entirely, impossible that there could be any issue. Unauthorised Investment.] — Trust funds, to which a married woman was absolutely entitled, but subject to a restraint on anticipation, were invested upon mortgages of leasehold property, one of which, not being authorised by the trusts of the settlement, the trustees proposed to call in. The court being satisfied that it would be for the benefit of the married woman, made an order, on her application, permitting the invest- ment to continue unchanged. Wright's Trusts, In re, 15 L. E., Ir. 331— V.-C. Payment off of Mortgage.] —By a voluntary deed lands were settled on A., the settlor for life ; remainder to B., a married woman, for life, with a clause against anticipation ; re- mainder to C. (B.'s husband) for life ; remainder as B. should appoint ; A., B., and C, joined in a mortgage vrith a power of sale, to secure advances by a bank to them. The bank sold under then: power for the full value. It appearing that there were no other means of paying off the mortgage, that the lands were in danger of eviction for non- payment of headrent, and that they were sold for full value, the court, on the application of B. and C, made an order for dispensing with the restraint on anticipation. Seagrave's Trust, In re, 17 L. E., Ir. 373— M. E. Binding Life Interest — Forfeiture.] — A married woman was, under the vrill of a testator, entitled to the income of a share of his residuary estate for her life for her separate use without power of anticipation. The will contained a proviso that the income to which any person should become entitled for life under the will should be forfeited in the event of such person charging, alienating, or assigning such income or any part thereof by any act of theirs, or by bankruptcy, or other act or operation of law. 933 HUSBAND AND WIFE. 984 And there was a gift over of the income in the event of forfeiture. She applied to the court, under s. 39 of the Conveyancing Act, 1881, that, notwithstanding the restraint on anticipation, she might be at liberty to bind her life interest under the will for the purpose of raising a loan ; — Held, that the application must be refused as it might involve a forfeiture of her life interest. Jordan, In re, Kino v. Picard, 55 L. J., Ch. 330 ; 5i L. T. 127 ; 34 VV. R. 270— Peareon, J. Tenants in Common — House Property.] — Two maiTied women were tenants in common in equal shares of property for their separate use without power of anticipation. The property consisted for the most part of houses of which desirable leases could not be granted because of the re- straint on anticipation. A summons was accordingly taken out for an order under the Conveyancing Act, 1881, s. 39, enabling the married women to bind their interests in the property, and for a partition, and its resettle- ment in moieties upon the married women for their lives for their separate use without power of anticipation, with remainders for their husbands for their lives, and ultimate remainders for the issue of the marriages : — Held, that under the circumstances an order binding the interests of the married women would be for their benefit within s. 39. Currey, In re, Gibson v. Way, 56 L. J.. Ch. 389 ; 56 L. T. 80 ; 35 W. R. 326— Chitty, j. To satisfy Wife's Creditors.]— A wife living with her husband was entitled to an income of 1,7001. for her separate use without power of anticipation. Her husband was without any means and had been adjudged bankrupt. The wife had given acceptances to many of her husband's creditors, and was harassed with actions, and a county court order for attachment in event of non-payment had been made against her. She was also suffering in health fiom the anxiety produced by pecuniary embarrassment : — Held, that the case was one in which the court would, in the exercise of its discretion under s. 39 of the Conveyancing Act, 1881, make an order relieving part of the wife's income from the re- straint on anticipation, in order that a sum might be raised to satisfy creditors. C.'s Settle- ment, In re, 56 L. J., Ch. 556 ; 56 L. T. 299— Chitty, J. AppUeation — Service on Trustees.]-^On an application by a married woman, under s. 39 of the Conveyancing Act, 1881, for liberty to bind her life interest by way of mortgage, notwith- standing that she is restrained from anticipation, it is not necessary to serve the trustees of the settlement. Little, In re, 36 Ch. D. 701 ; 56 L. J., Ch. 872 ; 57 L. T. 583— C. A. 5. MAINTENANCE BY HUSBAND. Jurisdiction of Justices— "Desertion."]— By the Married Women (Maintenance in case of Desertion) Act, 1886 (49 & 50 Vict. c. 52), s. 1, any married woman who has been " deserted " by her husband may summon him before jus- tices, and the justices, "if satisfied that the husband, being able wholly or in part to main- tain Ms wife and family, has wilfully neglected or refused so to do, and has deserted his wife," may order that he shall pay her a weekly sum for her support. Upon a summons by a married woman under the act, it appeared that disputes had arisen between her and her husband, and that they had lived apart under an agreement for separation, by which he undertook to pay her a weekly allowance so long as she should live chastely and should not molest him. He had ceased to make and refused to continue the weekly payments under the agreement. He charged his wife with adultery, but the justices found that the charge was not proved : — Held, that the refusal of the husband to pay his wife the weekly allowance and to carry out the agreement of separation was not sufficient evidence of " desertion " within the act to war- rant the justices in making an order against him for her support. Pape v. Pape, 20 Q. B. D. 76 ; 57 L. J., M. C. 3 ; 58 L. T. 399 ; 36 VV. R. 125 ; 52 J. P. 181— D. Besideuce of Wife.] — A married woman whose husband has deserted and refused to maintain her may obtain an order, under 49 & 50 Vict. c. 52, against him for her support from any magistrate or justices within whose juris- diction she resides at the time of such refusal or desertion, whichever act is the latest. Reg. V. Leresclw, 56 L. J., M. C. 135 ; 35 W. R. 805— D. Where such an order did not contain the name of the place where the refusal to maintain took place, the court refused to make absolute a rule for a certiorari to bring up and quash the same, it being admitted that the wife's residence was within the jurisdiction. li. Order obtained by Guardians — Wife leav- ing Workhouse.]— K., in 1877, deserted his wife, who went into the workhouse in 1881 ; the over- seers obtained an order upon K. for maintenance. In 1886 the wife left the workhouse, and applied for an order of maintenance under 49 & 50 Vict. c. 52 : — Held, that the justices had jurisdiction, and that as the former order was revoked by the wife leaving the workhouse, and as K. had never made any bon^ fide ofEer to resume cohabitation, she was a deserted wife. Kershaw v. Kershaw, 51 J. P. 646— D. Bight of Be-hearing — Evidence of Adultery.] — ^A wife applied to justices for an order of main- tenance against her husband under 49 & 50 Vict, c. 52. He suggested adultery against her, but was not prepared to prove it. The justices offered to adjourn it, so as to give time to obtain evidence, but he declined. The justices made the order against the husband : — Held, that he could not afterwards insist on a rehearing on the ground that he had since obtained evidence of the wife's adultery. Beg. v. Oldham JJ., 51 J. P. 647 — D. The power given to justices by s. 2 of the Married Women (Maintenance in Case of Deser- tion) Act, 1886 (49 & 50 Vict. o. 52), to " rehear any such summons at the instance of the hus- band at any time " is, on the true construction of the act, confined to the cases mentioned in the 2nd proviso to the 1st section, in which proof is offered that the wife has since the making of the order been guilty of adultery. Sephton v. Sephton, 58 L. T. 281 ; 52 J. P. 356— D. H H 2 9S5 HUSBAND AND WIFE. 936 Under Separation Agreements.] — See ante, cols. 910 et seq. In Divorce Proceedings.] — See ante, cols. 901 et sed. 6. OTHER PBOPEETY. Title Deeds— Trustee in Bankruptcy of Hus- band of Tenant for life.] — Where a wife is legal tenant for life of lands, not for her separate use, the trustee in banlsruptcy of her husband has no absolute right to the possession of the title-deeds during the coverture, but the court has a discre- tion in the matter. Sogers, Ex parte, Pyatt, In re, 26 Ch. D. 31 ; 53 L. J., Ch. 936 ; 51 L. T. 177 ; 32 W. E. 737— C. A. Protection Order — Cohabitation resumed — Seduction into Possession. ] — Where a wife, en- titled to property which is' reversionary, or which had not been reduced into possession by the husband, has obtained a protection order under 41 & 42 Vict. c. 19, s. 4, and has afterwards resuined cohabitation with her husband, on the property coming or being reduced into possession, the wife is entitled to it absolutely under 20 & 21 Vict. c. 85, s. 25, and 21 & 22 Vict. c. 108, s. 8. Emery's Trust, In re, 50 L. T. 197 ; 32 W. E. 357 —Kay, J. 7. DEALINGS WITH PROPEETY. a. Examination — Fines and Kecoveries Act. Object and Effect of Examination.] — One of the essential purposes of the separate examination of a wife on a sale and bouveyance of her real estate by herself and her husband under the Fines and Eecoveries Act (3 & 4 Will. 4, c. 74), is to ascer- tain whether the purchase-money is to belong to her husband or not. Accordingly, when she has acknowledged the conveyance before the commis- sioners, and has, on being separately examined by them, refused any provision out of the pur- chase-money or otherwise, she must be treated as having given up to her husband all claim upon the purchase-money, and as having no further interest in it either at law or in equity. This is the case even if the purchase-money or any part of it is left outstanding in trustees by way of an indemnity fund against charges on the estate ; as, for instance, in the case of part being vested in trustees by a deed of declaration of trust for the purpose of keeping down an annuity originally charged on the estate, and subject to which it is sold ; consequently, in such a case, in the event of the wife surviving the husband, and the fund still remaining outstanding, she cannot, as against his estate, claim the fund as her chose in action not reduced into possession by the husband. The efEect of a married woman's acknowledg- ment and separate examination under the Fines and Recoveries Act, discussed. Tennent v.Welch, 37 Ch. D. 622 ; 57 L. J., Ch. 481 ; 58 L. T. 368 ; 36 W. E. 389— Kay, J. Woman Married after 1870.] — The 8th section of the Married Women's Property Act, 1870, does not enable a woman married after the passing of the act to pass by an unacknowledged deed the fee simple of real estate descended upon her. Obser- vations upon a dictum of Jessel, M.E., in Voss, In re (13 Ch. D. 504, 505). Johnson v. Johnson, 35 Ch. D. 345 ; 56 L. J., Ch. 326 ; 56 L. T. 163 ; 35 W. E. 329— Stirling, J. Non-concurrence of Husband — Husband's In> terest in Bents.] — ^An order in the usual form obtained under s. 91 of the Fines and Recoveries Act, 1833, by a married woman, empowering her to dispose of her real estate without the con- currence of her husband, does not deprive him of the common law rights which he acquired in the property by reason of the coverture. Where, therefore, under such an order, a married woman sold and conveyed all her estate and interest in real estate, her husband refusing to join : — Held, that the husband's common law right to the rents during the coverture remained unaffected by the wife's alienation, but that (she asserting her equity to a settlement) he was bound, whether his estate was legal or equitable, to provide for her out of the rents ; and, under the circumstances, the whole of the rents were settled upon her. Fowhe v. Draycott, 29 Ch. D. 996 ; 54 L. J., Ch. 977 ; 52 L. T. 890 ; 33 W. R. 701- North, J. Specific Performance of Agreement.] — See Cahill V. Cahill, ante, col. 915. Trust for Sale — "Bare Trustee."] — A testator devised his real estate to trustees for sale, who- were married women, one of them having married before and the other after the Married Women's Property Act, 1882. Both of them also took beneficial interests in the proceeds of sale. Under the judgment in an action for the ad- ministration of the testator's estate, part of the real estate was sold by the trustees, the pur- chaser paying his purchase-money into court : — Held, that the married women were "bare trustees " within s. 6 of the Vendor and Pur- chaser Act, 1874, and that the conveyance to the purchaser did not require the concurrence of the husbands, or acknowledgment under the Fines and Recoveries Act. Boemra, In re, Docwra v. Faith, 29 Ch. D. 693; 54 L. J., Ch. 1121; 53 L. T. 288 ; 33 W. R. 574— V.-C. B. Copyholds, Covenant to Surrender.] — A covenant to surrender copyholds vested in husband and wife in right of the wife is in- operative to pass the wife's estate, though by deed acknowledged. Green v. Paterson, 32 Ch. D. 95 ; 56 L. J., Ch. 181 : 54 L. T. 738 ; 34 W. E. 724— C. A. Sale under Settled Estates Act.] — Notwith- standing the provision of s. 50 of the Settled Estates Act, 1877, that, when a married woman consents to an application to the court under the act, she is to be examined apart from her husband as to her consent, such an examination is not now necessary in the case of a woman who has married since the commencement of the Married Women's Property Act. 1882. Biddell v. Errington, 26 Ch. D. 220 ; 54 L. J., Ch. 293 ; 50 L. T. 584 ; 32 W. E. 680— Pearson, J. In the case of a woman married before the commencement of the Married Women's Property Act, 1882, s. 1 of the act applies only as to property acquired by her after the commence- ment of the act. Therefore, if such a woman is a petitioner, or a respondent to a petition, under the Settled Estates Act, 1877, relating to property 937 HUSBAND AND WIFE. 938 her interest in which was acquired before the commenGement of the act of 1882, she must be examined separately, as provided by s. 50 of the act of 1877. Harris's Settled Estates, In re, 28 Ch. D. 171 ; 54 L. J., Ch. 208 ; 51 L. T. 855 ; 33 W. K. 393— Peareon, J. On an application under the Settled Estates Act, 1877, for the sanction of the court to the purchase of certain land by the trustees of a settlement out of funds in court arising from sales of the settled hereditaments, the separate examination of a married woman, the tenant for life, was directed, notwithstanding s. 32 of the Settled Land Act, 1882. Arabin's Trusts, Iti re, 52 L. T. 728— Kay, J. Payment of Fund out of Court.] — A fund standing to the separate credit of a married woman, unless married after the Married Women's Property Act, 1870, will not be paid to her by the court, even on her separate receipt, without her separate examination. Secus, where the marriage was after the act, and the applicant takes under an intestacy. Deignati v. Deignaii, 13 L. E., It. 278— V. C. b. In other Cases. Payment out of Dividends.] — Form of order for payment of dividends to a married woman where the trust is for payment to her separate use with a restraint on anticipation and no gift over, discussed and stated. Stewart v. Fletcher, 38 Ch. D. 627 ; 57 L. J., Ch. 765 ; 36 W. R. 713 — Chitty, J. Absolute Gift — Bestraint on Anticipation.] — A testatrix, by her wiU dated in 1875, gave all her real and personal estate to trustees upon trust for sale and conversion, and, after payment of debts, to raise thereout 4,500?., and invest the same and hold the investments upon trust for K. for life ; and declared, after his death, the trustees should stand possessed of three several sums of l,O0OZ., part of the 4,500Z., in favour of certain persons therein named ; as to the remain- ing 1,5002., in trust for and to pay the same to B. (a married woman) for her sole and separate use, and in the event of her death in the lifetime of the testatrix to divide the same amongst her •children, and declared that the interest which any female might take under lier will should be for her sole and separate use and without power to anticipate the same, and for which her receipt alone should be a sufficient discharge. The testatrix died in 1881 ; E. died in 1882 :— Held, that B. was entitled to have the capital sum of 1,500Z. paid to her, and to give a good discharge for the same. Bown, In re, 0' Halloram, v. King, 27 Ch. D. 411 ; 53 L. J., Ch. 881 ; 50 L. T. 796 ; 33 W. E. 58— C. A. Where a fund subject to a particular estate is given absolutely to a married woman with a re- straint on anticipation, the restraint will not in the absence of any other ground be confined to the continuance of that particular estate. JBoum, In re (21 Ch. D. 411) distinguished. Tippett and Newhould, In re, 37 Ch. D. 444 ; 58 L. T. 754 ; 36 W. E. 597— C. A. A testator directed surplus income of real and personal estate, after providing an annuity, to be accumulated during the life of his wife ; after her death he gave the capital to his children ; he directed that the shares of his daughters should be for their separate use, without power of alienation or anticipation during the wife's life : — Held, that his married daughters, during the life of their mother, were entitled to receive only the income of invested income. Spencer, In re, Thomas v. Spencer, 30 Ch. D. 183 ; 55 L. J., Ch. 80 ; 34 W. E. 62— Pearson, J. , Settled Bealty — Mortgage of Income of.] — By a settlement, dated in 1864, freehold property was conveyed to trustees upon trust to let the same, and pay the rents and annual proceeds to C. S. W., a married woman, during her life for her own sole and separate use, free from the debts, control, or engagements of her present or any future husband ; and " the receipts of her . . . for the said rents and annual proceeds to be given after the same shall become due " to be " good and effectual discharges " to the trustees for the same ; and from and after the decease of C. S. W. then upon trust to pay the rents and annual proceeds to the husband, in case he survived her, during his life, with ulti- mate trusts for sale and division amongst the children and issue of C. S. W. by her then present or any future husband, as should be living at the time of such division. In 1881, C. S. W. and her husband mortgaged the income of the settled property to secure a loan of 1,0002., and in 1883 they further charged such income, together with other property, with the payment of 5002. Notices of the mortgage and further charge were duly given to the trustees of the settlement. C. S. W. did not receive any of the moneys secured thereby, but her husband received the same, and applied the whole in payment of his own debts. The question was whether the mortgage was a valid charge upon the income of the settled property, and who was entitled to be paid such income : — Held, that 0. S. W. was restrained from anticipation and her receipt was the only discharge which the trustees could accept. Baiter v. Bradley (7 De G., M. & G. 597) followed. Smith, In re, Chapvum v. Wood, 51 L. T. 501— Kay, J. Bestraint on Anticipation — Mortgage — Mar- shalling.] — C, a widow, was entitled to the income of one-third of a fund in court for her life for her separate use without power of anti- cipation, and was also entitled to the income of the remaining two-thirds of the fund for her life, but subject to certain deductions. She mortgaged all her interest in the fund, and some policies of assurance on her life to F., and an order was made for payment of the income of the mortgaged property to him. 0. then married M. ; and after her marriage she charged all her interest in the fund in favour of P. After this T. obtained a judgment against her, and the appointment of a receiver of her separate estate. The income received by F. was more than suffi- cient for payment of the interest on his mort- gage and the premiums on the policies, and he did not desire to reduce his principal : — Held, that as between F. and the subsequent incum- brancers of the fund, there ought to be a mar- shalling of securities, and that F. ought to pay the interest on his mortgage and the premiupas on the policies out of the income of the one-third with respect to which the restraint on anticipa- tion existed, so as to leave the income of the remaining two-thirds to satisfy the subsequent 939 HUSBAND AND WIFE. 940 incumbrances. Loder's Trusts, In re, 56 L. J., Ch. 230 ; 55 L. T. 582 ; 35 W. K. 58— North, J. Will — Future Separate Estate — Assent of Hus- band.] — The will of a married woman who had no personal estate belonging to her for her separate use at the date of the will, made without the assent of her husband, is effectual to dispose of personal estate to her separate use which she afterwards acquires and is entitled to at her death. CliarUmont {Earl) v. Spencer, 11 L. E., Ir. 490— C. A. Renunciation of Marital Bights— Real Estate.]— Mere renunciation by an intended husband of his marital rights in his wife's real property is not suflBcient to clothe her with a testamentary power, or to constitute a valid declaration of tnist of the fee. And upon the death of the wife without issue during her hus- band's lifetime, her heir-at-law, and not her devisee, will be entitled to the land of which she is seised in fee simple. Rippon v. Dawding (Ambl. 565) commented on. Dye v. Dye, 13 Q. B. D. 147 ; 58 L. J., Q. B. 442 ; 51 L. T. 145 ; 33 W. R. 2— C. A. Property acquired after Coverture.] — S. I, sub-s. 1, of the Married Women's Property Act, 1882, gives a married woman power to dis- pose by will only of property of which she is seised or possessed while she is under coverture. Consequently, notwithstanding s. 24 of the Wills Act, her will made during coverture is not, unless it is re-executed after she has become discovert, effectual to dispose of property which she acquires after the coverture has come to an end. Priee, In re, Stafford v. Stafford, or Price V. Stajford, 28 Ch. D. 709 ; 54 L. J., Ch. 509 ; 52 L. T. 430 ; 33 W. R. 20— Pearson, J. Banking accounts were kept in the joint names of husband and wife, and investments in railway stock were made in their joint names. The wife survived her husband five days, having executed a will during coverture : — Held, that the balances of the joint accounts and the joint investments survived to the wife, but did not pass under her will. Young, In re, Trye v. Sullivan, 28 Ch. D. 705 ; 54 L. J., Ch. 1065 ; 52 L. T. 754 ; 33 W. E. 729— Pearson, J. Statute for promoting Erection of Churches — Married Women, without their Hus- bands, excepted.]— Under the statute 43 Geo. 3, c. 108, vshich contained a power to all persons having an interest in any lands or in any goods or chattels, to give by deed enrolled, or will executed, three months before death, lands not exceeding five acres, or goods and chattels not exceeding in value 500^., for or towards the erecting of any church, with a, proviso that the Act should not extend to any persons being within age, nor women covert without their husbands to make any such gift : — Held, that the proviso was not afiected by the Married Women's Property Act, 1882, which by s. 1, sub-s. 1, gave power to married women to dispose by will of any real or personal property as her separate property in the same manner as if she were a feme sole. Consequently a gift by a married woman, by will executed three months before death, to the vicar and churchwardens of a church of a sum of 300Z. to be applied by them in the erection of a new church, and to be paid j out of personal estate which was legally applic- able for the purpose, was held to be invalid. Smith's Estate, In re, Clements v. Ward, 35 Ch. D. 589 J 56 L. J., Ch. 726 ; 56 L. T. 850 ; 85 W. E. 514 ; 51 J. P. 692— StirHng, J. Appointment by Will — Conversion.] — There is a distinction between a will made by a married woman under a power and when dis- posing of property in her own right as a feme sole. The power must be looked at to see in what character the property was held when disposed of by the testator, and where by virtue of the power it has been converted into personalty, she is in fact disposing of personalty. Chinn, In goods of, 9 P. D. 242 ; 53 L. J., P. 107 ; 33 W. R. 169 ; 49 J. P. 72— Hannen, P. Probate to Wills of Married Women.] — See Will (Peobate). IX. ACTIONS AND PROCEEDINGS BY AND AGAINST MABBIED WOMEN. Suing Alone — Tort committed before 1882. ] — A married woman is entitled under the Married Women's Property Act, 1882, s. 1, sub-s. 2, tO' bring an action in respect of a tort committed upon her during coverture before the commence- ment of the act, without joining her husband as plaintiff. Weldon v. Winslow, 18 Q. B. D. 784 ^ 53 L. J., Q. B. 528 ; 51 L. T. 643 ; 33 W. E. 219 — C. A. The Married Women's Property Act, 1882, does not enable a married woman to bring an action for an assault committed upon her during coverture before the passing of the act without joining her husband. Weldon v. Rwiere, 53 L. J., Q. B. 448 — D. But see preceding case. Tort when barred by Statute of Limita- tions.] — The right of a married woman whose husband is alive to bring an action in her own name, dates from the commencement of the Married Women's Property Act, 1882 (January 1, 1883). For that purpose she is a feme discovert within the Statute of Limitations (21 Jao. 1, c. 16), and she may within the statutable limits from that date bring an action for a cause which accrued many years previously to that date while she was a married woman. Weldon v. Neal, 51 L. T. 289 ; 32 W. E. 828— D. The effect of the Married Women's Property Act, 1882, is to make a married woman discovert from the date of the passing of the act in respect of torts committed against her during coverture, and she is entitled to bring an action in respect of a tort committed during coverture and before 1882, which would otherwise be barred by 21 Jac. 1, c. 16, s. 3 ; for that statute begins to run only from the date of the passing of the act of 1882. Lowe v. Fox, 15 Q. B. D. 667 ; 54 L. J., Q. B. 561 ; 53 L. T. 886 ; 34 W. E. 144 ; 50 J. P. 244— C. A. House Settled to Separate Use — Husband Claiming Right — Interim Injunction.]— On a marriage a leasehold house was settled upon the usual trusts for the wife for life, for her separate use, and the husband and wife continued to reside in the house. Differences arose between them, they ceased to cohabit, and the wife insti- tuted proceedings for divorce or judicial separa- 941 HUSBAND AND WIFE. 942 tion. The husband claimed the right to go to and to use the house when and as he thought fit, not for the purpose of consorting with his wife, but for his own purposes. In an action by the wife against the trustees and her husband, claim- ing adjministration of the trusts of the settlement and an injunction to restrain the husband from entering the house : — Held, that, under the cir- cumstances, the wife was entitled to an interim injunction. Symonds v. Hallett, 24 Ch. D. 346 ; 53 L. J., Ch. 60 ; 49 L. T. 380 ; 32 W. K. 103— C. A. And see next case. House in Sole Occupation of Wife as her Separate Property — Trespass.] — A married woman in the sole occupation of a house, bought by her out of her own earnings, since the Married Women's Property Act, 1870, can now, after the Married Women's Property Act, 1882, sue alone, without her husband, in an action for trespass, a person who has entered such house against her wfll, though he did no injury to the house, and entered it with the authority of her husband, but for a purpose unconnected with the hus- band's desire to live with his wife : — Qnsere, if the husband has himself a right to enter such house. Weldon v. Be Bathe, 14 Q. B. D. 339 ; 54 L. J., Q. B. 113 ; 53 L. T. 520 ; 33 W. E. 328— C. A. For Arrears of maintenance under Sepa- ration. Agreement.] — See Macgregor v. Macgregor, ante, col. 916. Liability for Tort after Marriage.] — The plaintiff may sue the wife alone or the husband and wife jointly for wrongs committed by her after marriage. Seroka v. Kattenhirg, 17 Q. B. D. 177 ; 55 L. J., Q. B. 375 ; 54 L. T. 649 ; 34 W. E. 542— D. Liability for Money Lent by Husband after Uarriage.] — See Butler y. Butler, ante, col. 915. Guardian ad litem of Infant — IText Friend.] — Notwithstanding the Married Women's Property Act, 1882, a married woman is still incompetent to act as next friend or guardian ad litem. Somerset (DuTte'), In re, Thynne v. St. Mawr, 34 Ch. D. 465 ; 56 L. J., Ch. 733 ; 56 L. T. 145 ; 35 W. E. 273— Chitty, J. Criminal Proceedings — Wife against Husband — Defamation.] — A wife could not before and cannot since the Married Women's Property Acts take criminal proceedings against her husband for defamatory libel. Bsg. v. London (Mayor'), 16 Q. B. D. 772 ; 55 L. J., M. C. 118 ; 54 L. T. 761 ; 34 W. E. 544 ; 50 J. P. 614 ; 16 Cox, C. C. 81- D. Husband and Wife — Coercion.] — Upon an indictment for highway robbery with violence D. and his wife were found guilty, the jury finding as to the wife that she had acted under the compulsion of her husband : — Held, that as to the wife the verdict amounted to one of not guilty. Beg. v. Dyhes, 15 Cox, C. C. 771 — Stephen, J. Husband taking Wife's Money.] — It is no offence for a husband to take his wife's money while they are living together ; sed aliter while they are living apart. Lemon v. Simmons, 57 L. J., Q. B. 260 ; 36 W. E. 351— D. Next Friend — ^Liability for Costs.] — A next friend, as long as he remains upon the record as next friend, must be taken to be carrying on the proceedings on behalf of the plaintiff, and is liable for the costs of an appeal, even though the notice of appeal did not purport to be given by him. Glanvill, Fn re, Ellis v. Johnson, 31 Ch. D. 532 ; 55 L. J., Ch. 325 ; 54 L. T. 411 ; 34 W. E. 309 ; 50 J. P. 662— C. A. Security for Costs.] — A married woman by her next friend took out an originating summons for an administration of a testator's estate, upon which an order was made without prejudice to any application by the defendants as to security for costs. The defendants applied, and, on the ground that the next friend was not a person of substance, an order was made staying proceedings till the plaintiff had given security for costs. The plaintiff appealed on the ground that a married woman could not be ordered to find security for costs : — Held, that, although a married woman suing alone cannot be ordered to find security for costs on the ground of poverty, security had rightly been ordered in the present case, since the next friend alone was liable for them, and that the plaintiff after obtaining a judgment by her next friend was too late to claim to sue alone. Thompson, In re, Stevens v. Thompson, 38 Oh. D. 317 ; 57 h. J., Ch. 748 ; 59 L. T. 427— C. A. Security for Costs.] — A married woman, suing alone, and having no separate estate, will not be ordered to give security for costs. Isaac, In re, Jacoh V. Isaac, 30 Ch. D. 418 ; 54 L. J., Ch. 1136 ; 53 L. T. 478 ; 33 W. E. 845— C. A. And see preceding case. Undertaking as to Damages — Injunction.] — ' An application was made on behalf of a married woman for an injunction restraining the Bank of England, until further order, from permitting the transfer of a sum of New Three per Cent. Annuities, standing in the names of the executors of a testator, and to which the married woman claimed to be beneficially entitled. An injunc- tion was granted for a fortnight on the usual undertaking of the married woman to be answer- able in damages. The registrar refused to draw up the order on the sole undertaking of the married woman as to damages : — Held, that the sole undertaking of the married woman must be accepted. Prynne, In re, 53 L. T. 465 — Pear- son, J. See also Sunt v. Sunt, ante, col. 928. Affidavit of Documents — Husband and Wife.] — A husband and wife sued as co-plaintiffs in respect of an alleged breach of trust by the trustees of their marriage settlement. The wife had a life estate for her separate use, and sued without a next friend. An order was made that the plaintiffs should file an affidavit stating " whether they or either of them " had in the possession or power " of them or either of them," any documents relating to the matters in ques- tion. They filed an affidavit admitting the possession of various docximents, which they scheduled, and going on to say, " We have not now, and never had in our possession, custody, or power, or in the possession, custody or power of any other person or persons on our behalf, any deed, &c., other than and except the documents 943 HUSBAND AND WIFE. 944 Bet forth in the said schedule " : — Held, that the plaintiffs must be ordered to file a fui'ther and better affidavit, for that an affidavit relating only to documents in the joint custody of the husband and wife did not comply with the order, and that the order was right in requiring them to answer as to documents in the possession of either of them. Fendall v. O'Connell, 29 Ch. D. 899 ; 5i L. J., Ch. 756 ; 52 L. T. 553 ; 33 W. R. 619— C. A. Third Party^ — Judgment against — Refusing to state Defence.] — Judgment may be ordered, under Ord. XVI. r. 52, against a third party who has appeared after a third-party notice has been served on him, if the third party, on the hearing of an application for directions, declines to state any defence, and if the judge is not satisfied that there is any question proper to be tried. Such judgment may be ordered against a married woman as a feme sole declaring her separate estate liable, although the liability was incurred prior to the passing of the Married Women's Property Act, 1882. GloucestersMre Banlting Company v. Phillips, 12 Q. B. D. 533 ; 53 L. J., ■Q. B. 493 ; 50 L. T. 360 ; 32 W. E. 522— D. Bight of Proof against Husband's Estate.] — H. was married to his wife in 1864, and she subsequently became entitled to certain moneys under the wills of her father and grandfather. These moneys she lent to her husband for the purposes of his business, upon the terms that he would execute a settlement of the moneys upon her, which was done. Upon the bankruptcy of H. a proof was tendered upon the settlement and rejected : — Held, that the settlement was not invalidated by s. 3 of the Married Women's Property Act, 1882, since that section was not retrospective and could not affect previously existing rights. Some, Ex parte. Home, In re, 54 L. T. 301 — Cave, J. And see Bankruptct, IX., 3. Order of Committal— Jurisdiction — Debtors ' Act, 1869, s, 6.]— Under s. 5 of the Debtors Act, 1869, there is no power to commit to prison a married woman for her default in paying a sum for which judgment has been recovered against her by virtue of s. 1, sub-s. (2), of the Married Women's Property Act, 1882. Scott v. Morley, 20 Q. B. D. 120 ; 57 L. J., Q. B. 43 ; 57 L. T. 919 ; 36 W. E. 67 ; 52 J. P. 230 ; 4 M. B. E. 286— C. A. Judgment for a debt and costs was recovered against a, married woman, execution being, by the terms of the judgment, limited to her sepa- rate property not subject to any restraint upon anticipation, unless by reason of the Married Women's Property Act, 1882, such property should be liable to execution notwithstanding such restraint. Upon an application for an order of committal against her under s. 5 of the Debtors Act, 1869, the only evidence of her ability to pay was that since the date of the judgment she had received sufficient income of separate property subject to a restraint upon anticipation : — Held, that no order could be made against her upon that evidence, because 8. 5 did not apply to the judgment. Drayoott or Darraoott v. Sarrison, 17 Q. B. D. 147 ; 34 W, E. 546— D. Upon a judgment summons issued under s. 5 of the Debtors Act, 1869, against a married woman who has only separate estate which she is re- strained from anticipating, an order for payment cannot be made unless it is shown that, since the date of the judgment, she has received some of her separate income. If in the judgment execu- tion is limited to separate estate which she is not restrained from anticipating, quaere, whether s. 5 of the Debtors Act, 1869, applies at aU. Dillon V. OunninglioMi (8 L. E., Ex. 23) distin- guished. Meager v. Pellew, or Meager, Ex parte, Pellew, In re, 14 Q. B. D. 973 ; 53 L. T. 67 ; 33 W. R. 573— C. A. An order, imder the Debtors Act, for payment by instalments will not be made against a mar- ried woman whose only separate estate is subject to restraint on anticipation, even though, since the date of the judgment against her, she has received income of the separate estate. Morgan V. Eyre, 20 L. E., Ir. 541— Q. B. D. Whether can be made Bankrupt.] — A married woman, possessed of separate estate, but not carrying on a trade separately from her hus- band, is not subjected to the operation of the bankruptcy laws, and cannot commit an act of bankruptcy under s. 4 of the Bankruptcy Act, 1883. Cuvlson, Ex parte, Gardiner, In re, 20 Q. B. D. 249 ; 57 L. J., Q. B. 149 ; 58 L. T. 119 ; 36 W. E. 142 ; 5 M. B. E. 1— D. Property in Bankruptcy.] — iSec Bankbuptcy, VIII., I, g. X. MAHRIAGE SETTLEUENTS. 1. WHAT INCLUDED IN. a. After-acquired Froperty. Judicial Separation — Effect of, upon Cove- nant.] — Where a marriage settlement contained a covenant to settle all property (except jewel- lery and money up to 200Z.) which the wife, or her husband in her right, might acquire " during the intended coverture," and after a decree for judicial separation the wife became entitled to certain stocks : — Held, that by virtue of s. 25 of the Divorce Act, 1857, the stocks belonged to her as a feme sole, and that the covenant to settle " during the coverture" had become in- operative. Dawes v. CreyTte, 30 Ch. D. 500 ; 54 L. J., Ch. 1096 ; 53 L. T. 292 ; 33 W. R. 869— V.-C. B. G-ift with Restraint on Anticipation.] — A restraint on anticipation is equivalent to a restraint on alienation, and accordingly the shares of married women in residuary real and personal estate given to them by will for their separate use without power of anticipation, are not bound by covenants for settlement of after- acquired property contained in their respective mai-riage settlements ; and the capital of the personal estate is not payable to them on their separate receipt. Currey, In re, Gibson v. Way, 32 Ch. D. 361 ; 55 L. J., Ch. 906 ; 54 L. T. 665 ; 34 W. E. 541— Chitty, J. Gift for Separate Use.] — In a marriage settle- ment in which there were no recitals, the in- tended husband covenanted with the intended wife and the trustees that he would, at the request of the trustees or tmstee for the time 945 HUSBAND AND WIFE. 946 being join with the wife in, or otherwise do, all such acts as might be required on his part in settling the after-acquired property of the wife. And it was thereby agreed and declared that, in the meantime until such settlement should be made, the property should be held upon the trusts upon which the same was thereby cove- nanted to be settled : — Held, that property to which the wife had become entitled during the marriage for her separate use was not bound by the covenant. Macpherson's Estate, In re, Mac- pherson, v. Macplierson, 55 L. J., Ch. 922 ; 55 L. T. 346— Kay, J. No Covenant by Wife — Recitals.] — A marriage settlement contained a recital of an agreement that all such personal estate above a certain value as should during the coverture be given or bequeathed to or othei-wise vest in the wife should be settled, and that the husband should enter into the covenant in that behalf therein- after contained. The corresponding operative part of the deed was a covenant by the husband alone (without the usual words " It is hereby agreed") that he and his wife would settle such property, and that until such settlement the husband and wife should stand possessed of the same upon the trusts of the settlement. The wife as well as the husband executed this settle- ment, and during the coverture property was given to the wife for her separate use : — Held, that the operative words were sufficiently am- biguous to enable the court to look at the recitals, and that on the whole instrument the wife's after-acquired separate property was bound by the covenant. Be Mos' Trust, In, re, Mardwicke v. Wilmot, 31 Ch. D. 81 ; 55 L. J., €h. 73 ; 58 L. T. 524 ; 34 W. R. 36— Kay, J. Covenant of Wife as vrell as Husband — Bever- sionary Interest.] — By a marriage settlement it was agreed and declared by the parties thereto, and the husband covenanted with the trustees ■of the settlement that all such property as the wife should at the date of her marriage, or as fche should become during coverture, seised, pos- sessed of, or entitled to, should, so far as their Tcspective rights, interests or powers over the same would allow, be conveyed and assigned to the trustees of the settlement. The wife was •entitled at the date of her marriage to a vested reversionary interest. The reversion fell in after the death of the husband and wife : — Held, that "the covenant was a covenant of the wife as well as by the husband, and that the reversionary interest was included therein. I)' HJstampes, In, re, D'Mtampes v. Hanliey. 53 L. J., Ch. 1117 ; 51 L. T. 502 ; 32 W. R. 978— Kay, J. Agreement of even Date.] — By an ante-nuptial settlement a lady and her intended husband, after reciting a settlement of even date, and that the parties had agreed to settle other pro- perty to which the lady " may be entitled," ■covenanted that, in case the lady "should be entitled to any property other than that in the •settlement, the same should be settled upon simi- lar trusts to those contained in the settlement :" — Held, that the agreement included after-ac- quired property of the lady. Blocldey, In, re, Bleckley v. BlocUey, 49 L. T. 805 ; 32 W. R. 385 — Pearson, J. Hffect of Married Women's Property Act, 1882 — Property acquired since 1882.] — A testatrix, dying in 1883, bequeathed the residue of her personal estate to her daughter, a married woman, absolutely. The daughter, by her marriage set- tlement in 1862, covenanted to settle after- acquired property (except interests limited to her separate use), upon the trusts of the settle- ment : — Held, that s. 19 of the Married Women's Property Act, 1882, exempted the marriage set- tlement from the operation 'of s. 5, and that the fund representing the residuary personalty was payable to the trustees of the settlement. Stonor's Trusts, In re, 24 Oh. D. 195 ; 52 L. J., Ch. 776 ; 48 L. T. 963 ; 32 W. R. 413— Pearson, J. By ante-nuptial settlement of 1873 the hus- band and wife covenanted to settle after-acquired property of the wife other than personal chattels, savings out of her separate income, or any moneys not exceeding in each case the value of 1,OOOZ., " or any property belonging, or which may be given or bequeathed to or settled upon her for her separate use, all which excepted articles and property shall belong to the said (wife) and shall or may be used, enjoyed, and disposed of by her accordingly as if she were not under coverture." Under the will, made in 1884, of her father, who died in the same year, the wiJEe became entitled to a share of personalty exceeding 1,000Z., and not limited to her separate use : — Held, that having regard to s. 19 of the Married Women's Property Act, 1882— the effect of which is to limit the operation of s. 5 by preventing the provisions of marriage settlements from being interfered with or affected by withdrawing therefrom property, which independently of the act must have been brought into settlement — the share of the wife under her father's will had not been made separate estate so as to fall within the exception, but was bound by the covenant to settle after-acquired, other than separate, property. And, semble, per Cotton, L.J., that upon the construction of the covenant, inde- pendently of s. 19, the property in question was not within the exception. Stonor's Tnists, In re (24 Ch. D. 195) approved. Wkitaker, In re. Christian v. Wkitaker, 34 Ch. D. 227 ; 56 L. J., Ch. 251 ; 56 L. T. 34 ; 35 W. R. 217— C. A. By a post-nuptial settlement made in 1847, it was agreed and declared by and between the husband, wife, and trustees, and the husband covenanted, that all property to which the wife, or her husband in her right, was then or should during the coverture become possessed of or en- titled to, should be assured upon trust for the wife for life to her separate use without power of anticipation, and after her death upon trusts in favour of the husband and issue of the mar- riage. During the coverture, property of the wife was reduced into possession by the husband, and settled upon the trusts of the settlement. In 1883 the wife became entitled, as one of the next-of-kin of a deceased testator, to a share of undisposed-of personalty : — Held, first, that the operation of s. 5 of the Married Women's Pro- perty Act, 1882, conferring on women married before the 1st of January, 1883, the right to hold and dispose of as their separate property all real and personal property accruing after that date, was not displaced by ». 19 of the act, which saves " any settlement or agreement for a settlement made or to be made, whether before or after marriage, respecting the property of any married woman ; " but that s. 19 referred only to settlements made by and binding upon married 947 HUSBAND AND WIFE. 948 women ; and, therefore, that the settlement, so far as it purported to be made by the wife, being void, the wife was entitled to the undis- posed-of personalty as her separate property. Stonor's Trusts, In re (24 Ch. D. 195) distin- guished. Secondly, that the wife oould be put to her election, notwithstanding that the com- pensating fund was subject to restraint on anti- cipation. Qiifade's Trusts, In re, 54 L. J., Ch. 786 ; 53 L. T. 74 ; 33 W. E. 816— Chitty, J. The effect of s. 19 of the Married Women's Property Act, 1882, is so to modify the operation of s. 5, that the persons interested under a settle- ment of the property of a married woman are not by s. 5 deprived of any beneiit to which they would have been entitled under the settlement in case s. 5 had not been enacted. Hancock v. Ilanooch, 38 Ch. D. 78 ; 57 L. J., Ch. 396 ; 58 L. T. 906 ; 36 W. R. 417— C. A. An ante-nuptial settlement executed in 1870, contained a covenant by the husband with the trustees that he would settle, or concur with the wife in settling, any property which during the coverture should come to her or to him in her right. The settlement did not contain any such covenant by the wife, or any joint agree- ment or declaration to that effect. In 1883, on the death of the wife's mother, the wife became entitled under her will to a share of the mother's personal estate, which was not limited by the will to the separate use of the wife : — Held, that this share was, notwithstanding the Act of 1882, bound by the covenant in the settlement. Queade's Trusts, In re (supra), disapproved. Ih. Property acquired " by purchase "-Shares- Policy of Insurance.] — A marriage settlement contained a covenant by the settlor to settle his estate and interest in any property or estate, real or personal, of or to which he should, at any time thereafter duringmarriage, become possessed or entitled by devise, bequest, purchase, or other- wise. He afterwards purchased some shares and effected some policies of insurance on his life : — Held, that the covenant in the settlement was in fact divisible, and that the shares and policies were " property," and property of or to which the settlor had "during the marriage become possessed or entitled by purchase" within the speciiic words of the covenant. Whether the covenant would have been capable of enforce- ment if it were in fact indivisible, or if, though divisible, the shares and policies had not come within one of the particular classes specified in it, quaere. Turcan,In re, 40 Ch. D. 5 ; 58 L. J., Ch. 101 ; 59 L. T. 712 ; 37 W. E. 70— C. A. Power of Appointment — Appointment to Self.] — By a marriage settlement, made in 1878, it was agreed that if M., the intended wife, or her husband in her right, should atone and the same time, nnd from the same source, become entitled to any real or personal property of the value of 500Z. or upwards, then and in every such case the husband and wife should cause the same to be vested in the trustees of the settlement, to be held by them upon the trusts of the property assigned by M. By his will, made in 1884, the father of M. bequeathed to the trustees of the will a sum of 4,000Z. upon trust for such persons and purposes as M. should appoint in writing, and in default of or subject to any such appoint- ment in trust for her sole and separate use, and the testator declared it to be his intention that M. might be able, by exercising her power of appointment, to defeat the operation of the covenant contained in her marriage settlement for the settlement of her after-acquired property. The testator died in 1887. M. appointed that the sum of 4,000Z. should be held in trust for her separate use by nine separate appointments, made on separate days, and each under 5001. in amount : — Held, that the sum of 4,OO0Z. had been properly appointed by M., and was payable to her, and was not bound by her covenant to settle after-acquired property. Gerard (^Lord\ In re, OUphant v. Gerard, 58 L. T. 800— North, J. Exception of Property settled by Instrument under which it was derived. ] — A marriage settlement made in January, 1877, contained a covenant by the husband and wife that all pro- perty not thereinbefore settled to which the wife or the husband in her right then was or should during the intended coverture become beneficially entitled, except jewels, trinkets, &o., and except also any property which might be settled by the instrument under which it was derived, should be assured and transferred to or otherwise vested in the trustees upon certain trusts. Under an appointment made by an in- denture dated 30th July, 1883, the wife had become entitled to a sum of 10,000?., which by such indenture was declared should be for her sole and separate use, and should not be subject to any trust or agreement for settlement con- tained in any settlement executed upon or im contemplation of her marriage : — Held, that the 10,000Z. was settled by the instrument under which it was derived, and was not within the covenant. Kane v. Kane (16 Ch. D. 207) fol- lowed. Beren's Settlement Trusts, In re, 5* L. T. 626— Chitty, J. Absolute Gift of Personalty — Separate Use attached only to Income.] — On the 5th June, 1860, A. and B., in exercise of the power of appointment in favour of children contained in their marriage settlement, dated in 1830, ap- pointed 3,500Z. to their daughter M. (afterwards M. S.). By the marriage settlement of N. S. and M. S., dated the 6th June, 1860, M. S. assigned the 3,500Z. to the trustees, upon trusts under which N. S. had the first life interest, and, in default of children, M. S. had a general testa- mentary power of appointment. There was also a covenant by N. S. and M. S. that if they, or either of them, should during the coverture become entitled to any real or personal property (except certain specified interests) the same should be forthwith assured to the trustees. On the 20th June, 1860, A. and B. appointed that a moiety of the residue unappointed of the trust funds under the settlement of 1830 should, after the decease of the survivor of them, go to M. S., during her coverture, for her sole and separate use, without power of anticipation, her receipt to be a sufficient discharge for the payment thereof. There was a proviso that if M. S. should die in the lifetime of N. S., leaving no children, the same moiety should go to the brother of M. S. absolutely, and that if M. S. should survive her husband, the same moiety should go to M. S. absolutely. M. S. died in 1887, leaving children, and having by her will appointed and bequeathed all her property to N. S., and ap- 949 HUSBAND AND WIFE. 950 pointed him sole executor. A. and B. had both pie-deceased M. S. :— Held, that the appoint- ment by A. and B., of the 20th Jane, 1860, showed an intention to exclude N. S., and any interest which he would take if the fund was caught by his marriage settlement ; that though the restraint on anticipation must be rejected (^Fry V. Capper, Kay, 163), yet, taken together with the gift over in default of children and the receipt clause, it showed an intention that the separate use should apply only to the income accruing during the particular coverture, and that M. S. should have no power of disposition over the corpus. Held, also, that such a limita- tion was clearly good ; and that, therefore, the fund having accrued during the coverture, the corpus was caught by the after-acquired pro- perty clause. Shute v. Hogge, 58 L. T. 546 — Kay, J. Chose in Action of Wife existing before, but falling into Possession after, Marriage.] — By a marriage settlement 10,000Z., part of a share of residue to which the wife was entitled under her uncle's will, was settled upon trusts therein declared. The settlement contained a covenant by the husband and wife to settle all property exceeding 300Z. which the husband and wife, or either of them in her right, should at any time or times subsequent to the solemnisation of the marriage and during the coverture become seised or possessed of or entitled to, either at law or in equity, under any gift, devise or bequest in her favour, or by descent, representation, or any other means whatsoever. Previously to the date of the settlement the wKe, who was of full age, had executed a general release to the executora of her uncle's will in respect of all her claims against the estate. It subsequently appeared that the release had been executed under a mistake, common to all th£ parties to it, as to the amount of the share of residue, and that the wife was in fact entitled to a large additional sum. The release was set aside in proceedings instituted for that purpose : — Held, that the additional share of residue was an . equitable chose in action, which until the release was set aside, could not have been recovered against the executors, and was therefore practically gone ; that upon the setting aside of the release the chose in action revived and must be treated as having come into existence, or at least into possession at that date ; and that therefore the additional sum was after-acquired property vnthin the meaning of the covenant. The additional sum which had been recovered by reason of the setting aside of the release con- sisted in part of capital and in part of income : — Held, that the whole sum was bound by the covenant. But held, on appeal, that the setting aside of the release did not give the wife any new right, but merely removed a bar which prevented her enforcing an existing right to property, and that the additional sum was not subject to the settlement. Garnett, In re, Robinson v. Gandy, 33 Ch. D. 300; 55 L. J., Ch. 773; 55 L. T. 562— C. A. Reversing 34 W. K. 434— Kay, J. Property to which Wife or Husband in her Bight " shall become entitled."] — In a settle- ment made before marriage there was an agree- ment to settle upon certain trusts all real and personal property to which the wife or the husband " in her right at anytime during her now intended coverture shall become entitled (except jewels and" certain other articles •'which it is hereby declared shall belong to" the wife "for her separate use)." The trusts included a power of sale, the moneys arising from the sale to be held upon the trusts agreed and declared concerning such part of the personal estate of or to which the wife " now is or she or " the husband " in her right shall become possessed or entitled as aforesaid : " — Held, that on the true construction of the agreement, read in conjunction with the context, it included property to which the wife was entitled before marriage ; and therefore that jewels given to the wife before marriage were within the exception, and belonged to the wife for her separate use. Williams v. Mercier, 10 App. Cas. 1 ; 54 L. J., Q. B. 148 ; 52 L. T. 662 ; 33 W. R. 373 ; 49 J. P. 484 -H. L. (E.). Settlement of Beal Estate on "the like Trusts " with Personal Estate.] — By a marriage settlement a sum of 360Z. belonging to the wife was settled, after the deaths of husband and wife, and in default of appointment by the wife, upon the wife's next of kin " of her own blood and family in due course of distribution^ the same as if she died a feme sole and intestate possessed thereof or entitled thereto." The settlement contained a clause providing that after-acquired real or personal property of the wife should be settled " upon and for the like trusts, intents, and purposes as were therein- before declared of and concerning the said principal sum of 360Z. thereby assigned." The wife afterwards acquired real and personal property, and died without having exercised the power of appointment, and the husband also died: — Held, that the wife's personal estate passed to her next-of-kin according to the Statute of Distributions, the half-blood sharing equally with the whole blood ; and that her real estate passed to her heir-at-law. Brigg v. Brigg, 54 L. J., Ch. 464 ; 52 L. T. 753 ; 33 W. R. 454— Pearson, J. Annuities — Pitting in with Trusts of Settle- ment.] — By an ante-nuptial settlement made in 1870 the intended husband and wife respectively covenanted with the trustees that all the estate, property, and effects, real or personal, of or t» which the wife, or the husband in her right, should at any time during the coverture become seised, possessed, or entitled, should be assured and settled, as regarded personal estate, upon trust, as to such part thereof as should not con- sist of money or authorized investments, or of interests determinable on the death of the wife, upon trust to convert, and to invest the proceeds, and such part of the estate as should consist of money, upon such investments as therein men- tioned, and during the joint lives of husband and wife pay "the interest, dividends, and annual proceeds thereof" to them in equal shares, the share of the wife to be for her separate use without power of anticipation. By a deed of the same date the wife's father covenanted with the trustees to pay to them an annuity of 500Z. to be applied by them upon trusts corresponding with those of the income of the personal property- mentioned in the covenant. In 1874 the wife's father bought up the husband's interest in this annuity, and assigned it to trustees for the wife's. 951 HUSBAND AND WIFE. 952 separate use with no restraint on anticipation : — Held, that the covenant to settle included life annuities given to the wife, that the share assigned by the wife's father in the annuity of 500Z. was bound by the covenant, and that, •during the joint lives of the husband and wife, three-fourths of the annuity belonged to the wife for her separate use ■«'ith a restraint on anticipation, and the remaining fourth to the trustee of the husband, who had become bank- rupt, and that persons to whom the wife had mortgaged the interest assigned in 1874 took nothing. Scholfield v. Spooner, 26 Ch. D. 9i ; 63 L. J., Ch. 777 ; 51 L. T. 138 ; 32 W. B. 910— r v. Rolfe (1 Ves. sen. 208) applied, and the son took a vested interest in his share on attaining twenty-one. Wahefielcl v. Majfct, 10 App. Gas. 422 ; 55 L. J., Ch. 4 ; 53 L. T. 169 — H. L. (Ir.). Power of Appointment — Recitals in Will.] — By articles under seal, dated 25th October, 1 830, executed on the marriage of J. E. M. and E. C. M., and not containing any hotchpot clause, two bonds for 1,500Z. and 3,O0OZ. respectively, and two policies of insurance for 1,000Z. each, were assigned to trustees upon trust, after the death of the husband and wife, for the children of the marriage as J. E. M. should appoint, and in default of any appointment in trust for the children equally. The parties to the marriage articles covenanted to execute a settlement in pursuance thereof. There was issue of the mar- riage, six children. In 1856, by settlement on the marriage of M. T., one of the daughters, J. E. M., assigned to the trustees of that settle- ment one of the policies for 1,000Z., the proceeds of which were on the death of J. B. M., in 1862, paid to the trustees of the settlement. In 1860, on the marriage of M. S., another daughter, a settlement was executed to which J. E. M. was a party, reciting an agreement by J. E. M. to give to that daughter 1,000?., payable upon the death of J. E. M. and E. C. M. ; and J. E. M. executed to the trustees of the settlement his bond for 1,000Z. In 1862, S., a third daughter, married, when a sum of 1,000?., secured by the joint bond of J. R. M. and his father, was put in settlement. In 1864, on the marriage of a fourth daughter, E., a settlement was executed, to which E. C. M. was a party, reciting the articles of 1830, and that J. E. M. had died, leaving 3,500Z. of the 6,500?. comprised in these articles unappointed ; and E. 0. M., in exercise of the power, appointed 1,250Z. to E., which she assigned to her trustees. In 1865, one of the sons mar- ried, and by marriage settlement, dated the 17th of January, 1865, reciting the articles of 1830, and that 2,250?. remained unappointed, E. C. M. appointed 1,000?. to him on the 5th of March, 1873 ; E. 0. M. by will reciting that she had a disposing power over 1,500?., exclusive of the suras settled on her son and her three firstly married daughters, viz., M. T., M. S. and S., bequeathed 500?. out of her own personal estate and out of the 1,500?. to trustees for her grand- son J. (son of M. T.), and the residue of the 1,500?. to trustees for her grandson J. (son of M. T.), and the residue of the 1,500?. to trustees for her daughter M. T. for life, remainder to her children. By a codicil to her will E. 0. M. left one-half of the residue of the 1,500?. to M. T. for life, remainder to her children, and the other half to M. S. for life, remainder to her children :— Held, that the settlements on the marriage of the 959 HUSBAND AND WIFE. 960 daughters, M. S. and S., were not good appoint- ments, and were not validated by the recitals in B. 0. M.'s will ; that the will and codicil were good appointments to M. T. and M. S. for life as to half of the residue to each, but void as to their children. Miller v. Gulson, 13 L. E., Ir. 408— V.-C. " Issue."] — By a marriage settlement certain funds were assigned to trustees, upon trust (after the death of the husband and wife) for the issue of the marriage as the wife should hy deed or will appoint ; and, for want of such appointment, upon trust for the issue of the marriage, if more than one, in equal shares, the sous at twenty-one and the daughters at twenty- one or marriage ; and in case there should be but one child issue of the marriage, or, if more than one, and all but one should die without haying become entitled, then in trust for such only or suiTivtng child at the time thereinbefore limited or appointed ; and, in case there should not be any issue of the intended marriage, upon certain trusts therein mentioned. The wife by will appointed part of the trust fund to the five children of her late son W. A. : — Held, that the word " issue " in the power of appointment must be construed in its strictly technical meaning, and that therefore the appointment was valid. Warren's Trusts, In re, 26 Ch. D. 208 ; 53 L. J., Ch. 787 ; 50 L. T. 454 ; 32 "W. R. 641— Pear- son, J. There is no absolute rule that, because the word " i'sue " is used in one or more clauses of a settlement as meaning " children " only, it must receive the same construction in every other clause. li. Objects of Power — " Issue then in being" — Vesting of Estate, Time of.] — By a settlement made on his marriage, the settlor granted free- hold lands to trustees upon trust for himself for life and after his death to convey the lands and pay the rents and profits "unto or for the benefit of all and every or any one or more child or children, or any grandchild or grandchildren or other issue then in being of the said intended marriage " for such estate or interest and in such shares and subject to such conditions as the settlor should by deed or will appoint. There was issue of the marriage seve- ral children who all attained twenty-one. The settlor appointed a portion of the lands to his eldest son, then of age, his heirs and assigns, and joined with him in mortgaging this portion. The son having died in- his father's lifetime: — Held, that upon the true construction of the settlement the words " then in being " governed only the words " grandchild or grandchildren or other issue," and not the words " child or children ; " that the appointment was therefore valid, and that the fee passed under the mort- gage. Leader v. Dujf'ey, 13 App. Cas. 294 ; 58 L. J., P. C. 13 ; 59 L. T. 9— H. L. (Ir.). Power to A. and B. Jointly and to Sur- vivor — Revocation of Joint Appointment by Survivor.] — By a marriage settlement a sum of stock was settled upon trust (after the decease of the husband and wife) for the children of the marriage as the husband and wife should by deed, with or without power of revocation, jointly appoint ; and in default of such appointment, and so far as any such appointment should not extend, then as the survivor should by deed or will appoint. The husband and wife by deed appointed the fund amongst their children in certain shares. The deed reserved a power of revocation to the husband and wife or the survivor. The wife died, and the husband by deed revoked the former appointment, and irre- vocably appointed the fund amongst the children in shares differing from those given by the original appointment : — Held, that it was com- petent to the husband and wife to reserve a power to the survivor of them to revoke the joint appointment, and that therefore the deed of revocation and new appointment executed by the husband was valid. jDixon v. Pyner, 55 L. J. , Ch. 566 ; 54 L. T. 748 ; 34 W. B. 528— Kay, J. Exercise by Will — Lapse — Covenant for further Assurance — Estoppel.] — By a marriage settlement, dated in 1863, after reciting that B., the wife, was " seised of or otherwise well entitled to " the freeholds therein described (subject to the life estate of J. C. P.), and that she was entitled to leaseholds and other personal estate, the freeholds were conveyed to trustees (subject to the life estate of J. C. P.), and the leasehold and personal estate were assigned to them upon trust as to 10,000Z. for B. for life, and afterwards for A. (the husband) for life, and subject thereto, as to all the realty and personalty as B. should appoint, and in default in trust for B. for life, and if she should predecease her hus- band, in trust as to the realty for her heirs, and as to her personalty for her next of kin as if she had died unmarried. The settlement contained the usual covenant for further assurance. At the date of the settlement it was believed that B. was entitled to the entirety of the freeholds and leaseholds, subject to the life estate of J. C. P., whereas she was entitled only to thirteen-six- teenths thereof, and .7. C. P. was then, and to the time of his death, entitled to three-sixteenths. J. C. P. died in 1866, having by his will given his property to B. B. made her will in 1880, and in exercise of the powers in the settlement, and of every other power, gave all the freeholds and leaseholds to W. W. P. and T. H. P. equally, and the rest of the personal estate to trustees to divide between J. B. P., W. W. P. and T._H. P. B. made a codicil in 1880, revoking the gift of any moneys accumulated from the settled pro- perty, and giving the same to her husband. T. H. P. died in B.'s lifetime without issue : — Held, that B. had made the personal estate, which was included in the residuary gift, part of her own assets, and that so far as it lapsed it passed to her next of kin, as though at her death it had belonged to her absolutely. Held, also, that the person claiming under the appointment had, as regards the three-sixteenths of the freeholds, the right to insist upon that claim, either on the ground that the recital in the settlement amounted to an estoppel, or that he had an equity to enforce the covenant for further assurance ; that B. had made the property part of her estate, and that so far as it lapsed it devolved upon her heirs- at-law. Horton, hi re, Horton v. Perils, 51 L. T. 420— Kay, J. b. Election. Settlement on Marriage of Female Infant — Restraint on Anticipation— Covenant to settle After-acquired Property.] — The doctrine of election is founded on the presumption of a general intention that every part of an instru- 961 HUSBAND AND WIFE. 962 ment shall take effect, and the presumption of such general intention may be rebutted by an inconsistent particular intention apparent in the instrument. Therefore, where a marriage set- tlement settled a fund for the separate use of the wife for life with restraint on anticipation, and contained a covenant by the wife (then an infant) to settle future property : — Held, that the wife could not be compelled to elect between after- acquired property and her interest in the settled fund, but was entitled to retain both. Vardon's Trust, In re, 31 Ch. D. 275 ; 55 L. J., Ch. 259 ; 53 L. T. 895 ; 34 W. R. 185— C. A. See also Wheatley, In re, ante, col. 923, and Queade's Trusts, In re, ante, col. 947. c. Forfeiture Clauses. Effect of words " commit, permit, or suffer."] — Under the terms of a marriage settlement the rents and profits of lands were payable to M. for life, or until he should be adjudged a bankrupt "or should commit, or knowingly permit, or suffer to be committed, any act whereby his interest in all or any of the said several lands, or any part thereof, might become the property of a third party for any time or term whatsoever," or that the lands, or any part of them, should be taken in execution, or any proceedings taken to sell same, by any person or persons whatsoever, A judgment was obtained against M., a writ of fi. fa. issued, and some cows were seized by the sheriff but returned, the debt having been paid : — Held, that under the words " commit, or knowingly permit, or suffer to be committed, any act whereby his interest might become the property of a third party," no forfeiture of M.'s interest in the lands had occurred. Ryan, In re, 19 L. E., Ir. 24— Bk. Charging order — "Aasig^ns."] — By a marriage settlement the annual income of the trust fund was given to the husband " and his assigns " for his life or untU he should make, or attempt to make, any assignment of the income or any part thereof, or to charge or incumber, or attempt to charge or incumber the same ; the settlement contained limitations over. The husband mort- gaged his life interest, and charging orders, in respect of certain judgments, had been made against his life interest. It was contended that the effect of the addition of the word " assigns " was that the husband's life interest was absolute, and the forfeiture clause void : — Held, that the construction contended for was too wide ; that the charging orders were not within the clause ; that effect could be given to the clause against alienation and at the same time to the word " assigns," and further that the charging orders were valid against the income up to the date of the mortgage, but that the mortgage operated so as to work a forfeiture of the life interest. Kelly's Settlement, In re, West v. Turner, 59 L. T. 494— Chitty, J. Effect of Bankruptcy.]— iSee Bankbtjptcy, XVII. 3. ENFOECING COVENANTS. Covenant to Settle After-acquired Property- Volunteer Claiming Benefit — Defective Execu- tion of Power.] — The maxim that equity looks upon that as done which ought to be done, applies only (in cases depending on contract) in favour of persons who are entitled to enforce the con- tract, and cannot be invoked by volunteers. By a marriage settlement executed in 1853, certain personal estate was assigned to trustees upon trust in case the husband should die in the life- time of the wife, and there should be no children of the marriage, to stand possessed thereof for the wife, her executors, administrators, and assigns. The settlement contained a covenant by the husband and wife that any real estate to which the wife should become entitled, whether in possession, reversion, remainder, or expectancy, or over which she should have an absolute power, should be assured to the trustees to be held by them upon the same trusts as the above-mentioned personal estate, or as near thereto as the nature of the property would admit of, and until so assured should be subject to the trusts and enjoyed accordingly. By a deed executed in 1873, certain lands called the Stonehouse pro- perty were conveyed to trustees for the wife during the joint lives with restraint on anticipa- tion, remainder to her for life, remainder as she should by deed or will appoint, and in default of appointment to the husband in fee. By a codicil to her will made in her husband's lifetime the wife devised the Stonehouse property to two persons. The husband died in May, 1882, and the wife in the month of June following. She never republished her will or codicils. There were no children of the marriage, and the Stonehouse property was never assured to the trustees on the trusts of the marriage settlement. In an action to administer the real and personal estate of the wife : — Held, that the covenant to assure after-acquired property could not be enforced or treated as operative in favour of the heir-at-law, that the declaration of trust annexed to it could not be regarded in his favour as a defective execution of a power which the court would cure, and that the codicil being a good execution of the power of appointment contained in the deed of 1873, the two devisees therein-mentioned were entitled to the Stonehouse property. Anstis, In re. aietioynd v. Morgam, 31 Ch. D. 596 ; 54 L. T. 742 ; 34 W. E. 483— C. A. Post-nuptial — Voluntary as to Children.] — Where a post-nuptial settlement has been executed by a husband and wife in consideration of an exchange of interests between them, such a settlement, though for value as between them- selves, is voluntary as regards the children of the marriage, and specific performance of a covenant to surrender copyholds cannot be enforced by them. Green v. Paterson, 32 Ch. D. 95 ; 56 L. J., Ch. 181 ; 54 L. T. 738 ; 34 W. E. 724— C. A. 4. EBCTIFIOATION AND CANCELLATION. Kectification— Agency of Wife's Father.]-— A father living on affectionate terms with his daughter is the proper person to recommend and advise her, and her natural agent in matters relating to the preparation and provisions of her marriage settlement, and there is no occasion for any independent legal advice beyond that of the family solicitor who is preparing the settlement. If, however, the father is taking under the 963 INDIA. 964 settlement a benefit from the daughter, she ought to be separately advised. Smith v. lUffe (20 L. B. Eq. 666) disapproved. Wollaston v. Tribe (9 L. R., Eq. 4*) doubted. Tucker v. Bennett, 38 Oh. D. 1 ; 57 L. J., Ch. 507 ; 58 L. T. 650— 0. A. The court will not apply to the consideration of provisions in favour of volunteers contained in a contract founded on marriage, the principles on which it would act in considering provisions contained in a voluntary settlement. Ih. Per Cotton, L.J. Cancellation — Inchoate Marriage Settlement.] — In contemplation of marriage, an intended wife and her father executed the engrossment of a settlement of, inter alia, funds to be provided by the father, and the present and after-acquired property of the intended wife. The engrossment was given into the custody of the solicitors of the intended husband ; it was not executed by him or the trustees. The engagement was broken off by agreement. After the lapse of three and a half years the court declared the engrossment void as a settlement, and directed it to be given up. Bond V. Walford, 32 Ch. D. 238 ; 55 L. J., Ch. 667 ; 54 L. T. 672— Pearson, J. By a settlement executed in 1877, in considera- tion of a then intended marriage, it was declared tbat a sum of stock, the property of the intended wife, which had been transferred by her to two trustees, should be held by them on trust for the benefit of the intended wife, the intended hus- band, and the issue of the intended marriage. The marriage was not solemnized, but the parties cohabited without marriage, and three children were born. In 1883 an action was brought by the father and mother against the trustees of the settlement, to obtain a transfer of the fund to the mother :— Held, that the contract to marry had been absolutely put an end to, and that the court could order the stock to be transferred to the lady. Ussery v. Cowlard, 26 Ch. D. 191 ; 53 L. J., Ch. 661 ; 51 L. T. 60 ; 32 W. K. 518— Pearson, J. Eescission— Fraud before Marriage.] — In an action to set aside a marriage settlement, the plaintiff alleged, as the ground of his action, that previous to the execution of the settlement made upon the marriage between himself and I. S., the latter stated to him that her first husband had been divorced from her, at her suit, by reason of his cruelty and adultery, and that she had not herself been guilty of adultery ; that such state- ments were made to induce him to execute the settlement and contract the marriage ; that in reliance on the representations, he executed the settlement and married I. S. ; that he subsequently discovered that the representations were false to the knowledge of I. S., and that she herself had been divorced from her husband at his suit and by reason of her adultery : — Held, on motion by the defendant, that the plaintiff's statement of claim must be struck out under Ord. XXV. r. 4, as disclosing no reasonable ground of action. Johnston v. Johnston, 52 L. T. 76 ; 33 W. E. 239 — C. A. Affirming 53 L. J., Ch. 1014— Pearson, J. ILLEGALITY. Of Contracts.]- /Sse Conteact, III., 3. Of Companies — Non-registration.] — See Com- pany, I., 3, a. IMPRISONMENT. Of Debtors.]— (Sfe Dbbtoeb Act. Of Criminals.] — See Peisons — Ceiminal Law. False Imprisonment.] — See Maliciotts Peo- SECTTTION. INCLOSURE. See COMMONS. INCOME TAX. See EEVENUB. INCUMBENT. See ECCLESIASTICAL LAW. INDEMNITY. See PEINCIPAL AND SUEBTY. INDIA. Bombay Civil Fund — Mode of Trial. ] — On an application to the Court of Appeal \mder the Bombay Civil Fund Act, 1882, to prescribe the manner of trial of a question alleged by the ap- plicant to arise between him and the Secretaiy of State for India as to the liability of the fund, the court will not enter into any inquiry as to the nature of the applicant's claim. Form of directions as to the manner in which the ques- tion shall be tried. Bombay Civil Fund Act, In re, 1882, Pringle, Use parte, 39 Ch. D. 300 ; 60 L. T. 81— C. A. 966 INFANT— Contracts. 966 INDICTMENT. See CRIMINAL LAW. INDUSTRIAL SCHOOLS. See SCHOOL. INDUSTRIAL SOCIETY. mortgage by Member of Property and " Other Moneys" — Defalcations.] — H., a member of the defendant society, mortgaged to the societv certain property to secure principal money payable by certain instalments, with interest and subscrip- tions, and " other moneys becoming due from the mortgagor to the defendant society." H. was also secretary of the society, and in that capacity had received and misapplied moneys belonging to the society. He had conveyed the equity of redemption in the mortgaged property to the plaintiff, who claimed to redeem on pay- ment of the mortgage debt, with interest, sub- scriptions, fines, and other payments due from H. as member. The society claimed in addition to this the amount which H. had embezzled, contending that it came within the words " other moneys " : — Held, that the words applied to debts ejusdem generis with what had been mentioned before, and that the sums which H. had embezzled were not ejusdem generis with the mortgage debt, interest, and subscriptions, but were due from H. on a totally different contract, and the society could not insist upon the plaintiff paying such sums before redeeming the property. JBailes V. Sunderland Equitaile Industrial Society, 55 L. X. 808 ; 51 J. P. 310— Stirling, J. INFANT. I. CONTEACTS, 966. II. Maeeiage Settlements, 967. III. Pkopestt, 969. IV. Maintenance, 971. V. GUAEDIANS, 975. VI. Ward op Cotjet, 976. vn. Custody, 977. VIII. Ebligiotjs Education, 980. IX. Actions and Peocbbdings by and Against, 980. X Legitimacy ov. — See Husband and Wife, I., 4. XI. Advancement of. — i&a Advancement. I. CONTRACTS. Necessaries — Evidence.] — "WTiere an infant is sued for the price of goods supplied to him on credit, he may, for the purpose of showing that they were not necessaries, give evidence that, when the order was given, he was already suffi- ciently supplied with goods of a similar descrip- tion, and it is immaterial whether the plaintiff did or did not know of the existing supply. Ryder v. Wombwell (3 L. R., Ex. 90) dissented from. Baines or Barnes v. Toye, 13 Q. B. D. 410 ; 53 L. J., Q. B. 567 ; 51 L. T. 292 ; 33 W. R. 15 ; 48 J. P. 664— D. Where an infant is sued for the price of goods sold to him on credit, he may, for the purpose of showing that they were not necessaries, give evidence to show that at the time of the sale he was sufficiently provided with goods of the kind supplied. Ryder v. Womhwell (3 L. R., Ex. 90) dissented from. Barnes v. Toye (13 Q. B. D. 410), approved. Jolmstone v. Marks, 19 Q. B. D. 509 ; 57 L. J., Q. B. 6 ; 35 W, R. 806— D. For Benefit of Infant — Injunction to restrain Breach.] — An infant contracted with a dairy- man to enter his employment at a salary of 11. a week, and agreed that he would not serve for ,his own benefit any of his employer's customers during the time he remained in such employ- ment, or for two years afterwards, and that two weeks' notice to leave was to be given on either side : — Held, that this contract was beneficial to the infant, and could be enforced by in- junction against him, and that s. 1 of the Infants' Relief Act, 1874, does not apply to such a contract. Fellows v. Wood, 59 L. T. 518 ; 52 J. P. 822— D. Apprenticeship Deed.] — An infant was apprenticed by a deed containing a provision that the master should not be liable to pay wages to the apprentice so long as his business should be interrupted or impeded by or in consequence of any turn-out, and that the apprentice might during any such turn-out employ himself in any other manner or with any other person for his own benefit : — Held, that, this provision not being for the benefit of the infant, the appren- ticeship deed could not be enforced aigainst the infant under the Employers and Workmen Act, 1875, ss. 5, 6. MeaUn v. Morris, 12 Q. B. D. 352 ; 53 L. J., M. C. 72 ; 32 W. R. 661 ; 48 J. P. 344— D. Promise of Marriage — Ratification — Fresh Promise.] — The plaintiff and defendant, who were both under age, became engaged to be married in April, 1886. In September, 1886, the defendant came of age. In October, 1886, the plaintiff's father made an assignment of his pro- perty to his creditors, and immediately after- wards informed the defendant of the fact, and told him if he wished to be released from his I I 2 967 INFANT— Marriage Settlements. 968 engagement he could. The defendant then re- fused to be released, and said he was quite will- ing to many the plaintiff, and asked her whether she thought they were old enough ; to which the plaintiff replied they had better wait awhile. The defendant subsequently broke off the en- gagement, and refused to marry the plaintiff : — - Held, that there was evidence to go t.i the jury that there had been a new promise to marry made by the defendant after he came of age. Holmes v. Srierley. 36 W. E. 795— C. A. Ee- versing 59 L. T. 70 ; 52 J. P. 711— D. II. MAEEIAGE SETTLEMENTS. Confirmation — Joint Tenancy — Severance — Cseterorum Grant.] — Where on the marriage of a female infant her interest as one of several joint - tenants in a reversionary property is settled, the settlement requires no confirma- tion, but, though voidable, is valid and effectual until avoided, and operates to sever the joint- tenancy. Smith V. iMcas (18 Ch. D. 531) con- sidered. Burnaby v. Equitable Reversionary Interest Society, 28 Ch. D. 416 ; 54 L. J., Ch. 466 ; 52 L. T. 350 ; 33 W. E. 639— Pearson, J. In such a case the lady, in exercise of a power of appointment given her by the settlement, appointed by her will all the property over which she had any power of appointment or disposition to her husband absolutely, and ap- pointed him her executor : — Held, that the husband could make a good title to the wife's interest in the reversionary property without obtaining any cseterorum grant. Held also, that the husband's title derived as above was sufficiently clear to be forced upon a purchaser —Ih. Post-nuptial — Jurisdiction of Court to Order — Infants' Settlement Act, 1855.]— The court has jurisdiction in a case where a female infant has married under the age of seventeen, after she has attained that age, to direct a proper settle- ment of her property to be executed. Phillips, In re, 34 Ch. D. 467 ; 56 L. J., Ch. 337 ; 56 L. T. 144 ; 35 W. E. 284— Chitty, J. The Infants' Settlement Act, 1855 (18 & 19 Vict, c. 43) removed the disability of infancy only, leaving unaffected the disability of coverture. In 1862 an infant ward of court married without the sanction of the court. An inquiry as to her fortune having been shortly afterwards directed by the court, a post-nuptial settlement was exe- cuted by her in 1863, with the approval of the Vice-Chaneellor, whereby she settled her pro- perty, a reversionary interest in personalty under a will, upon trusts for herself for life, with the remainder for the children of the marriage. The testator having died before Malins' Act (20 & 21 Vict. c. 57) came into force, that act had no ap- plication. There was issue of the marriage. During coverture the wife recognized the settle- ment by various acts, and after a dissolu- tion of the marriage had been decreed on her petition, she successfully petitioned the Probate, Divorce and Admiralty Division to vary the terms of the settlement. The reversionary in- terest having fallen into possession after the dis- solution of the marriage : — Held, that neither the sanction of the court nor the effect of that act could make the settlement of the wife's reversionary interest in personalty binding upon her ; that no acts of acquiescence and con- firmation could have that effect unless they amounted (which these acts did not) to an actual disposition by her of the property (while discoverte) to the trustees of the settlement, and that she was entitled to a transfer of the property. Seaton v. Searon, 13 App. Cas. 61 ; 57 L. J., Ch. 661 ; 58 L. T. 565 ; 36 W. E. 865— H. L. (B.). A post-nuptial settlement of an infant's pro- perty may be made with the sanction of the court under the Infants' Settlement Act, 1855. Sampson and Wall, In re, or Wall, In re, 25 Ch. D. 482 ; 58 L. J., Ch. 457 ; 50 L. T. 435 ; 32 W. E. 617— C. A. Trustees — Torm of Settlement.] — S- having married a ward of court, in contempt of court, was committed to prison, and a settle- ment was prepared by the order of the court of the wife's property, giving S. no interest in the property, and containing a power of appointment by wiU to the wife in default of children in favour of any one except her husband. The wife objected to the trustees named in the pro- posed settlement on personal grounds, and objected also to the power of appointment in default of children excluding her husband, and refused to execute the settlement : — Held, that it was desirable that trustees of the settlement should be persons with whom the parties in- terested could hold friendly intercourse, and that as the proposed trustees were personally distaste- ful to the wife, it was desirable to substitute other trustees for them. That as to the power of appointment by wiU by the wife in default of children, it would be conducive to the happiness of the husband and wife during their married life that the wife should not be debarred in default of children from appointing anything to her husband, and the settlement was therefore directed to be altered in those respects. lb. Disentailing Assurance — Female Infant — Omitted Property — Mistake.] — A public body took, under compulsory powers, certain freeholds at A. to a moiety of which (together with much other property) a female infant ward of court was entitled as one of two tenants in common in tail, and they paid the purchase-moneys into court. Afterwards, and while the ward was still an infant, proposals for a settlement upon her marriage were carried in on her behalf under the Infants' Settlement Act, 1855, in which it was stated that she was entitled as tenant in common in tail to certain specified properties, and that it was proposed to bar the entail in the lady's share in such properties, and to vest the whole of such share, except 13,000Z., in trustees to be held upon certain trusts. Amongst the properties so specified were included by inadvertence the freeholds at A. A settlement founded on these proposals was sanctioned by the court, and was carried out in 1884 by a disentaihng deed, and a deed of declaration of trust, both of which were approved by the court. The freehold property at A. was included in the parcels to the disentailing deed, but no mention of the fund in court arising from the purchase- money of this property was made, either in the proposals or in the deeds ; and the disentaUiug deed contained no covenant for further as- surances, or for the settlement of other or after- acquired property. The marriage took place, 969 INFA'NT— Property. 970 and afterwards, in 1886, the lady attained twenty-one, disentailed the fund in court, and claimed it as being her absolute property under the Married Women's Property Act, and un- affected by her marriage settlement. In an action by the trustees of the marriage settlement to establish their title to the funds in court : — Held, that the disentailing deed of 1884 was not effectual to bar the estate tail of the lady in the fund in court ; and that although in the absence of any contract binding the lady to settle the freeholds at A., the settlement could not be rectified, yet inasmuch as both the marriage and the settlement were sanctioned by the court upon the faith of a representation made on behalf of the lady that she was entitled in tail to a moiety of the property, the purchase- money of which was represented hy the fund in court, she was bound in equity to make good such representation, notwithstanding her infancy at the time it was made ; and that having disentailed the fund in court, and thus become the only person, besides the plaintiffs, who could claim any interest in it, she was precluded from setting up any title to the fund in court adverse to that of the plaintiffs as trustees of the settle- ment, and that one moiety of such fund ought to be transferred to and held by them upon the trusts of the settlement. Mills v. Fox, 37 Ch. D. 153 ; 57 L. J. Ch. 56 ; 57 L. T. 792 ; 36 W. K. 219— Stirling, J. Costs — ^Payment out of Corpns.] — The costs of a settlement of the property of a female ward of coTiit, made upon her marriage with the sanc- tion of the court, were ordered to be paid out of the corpus of the settled property. Anonymous (4 Suss. 473) followed. De Staej>oole v. 2)e StacpooU, 37 Ch. D. 139 ; 57 L. J., Ch. 463 ; 58 L. T. 382 ; 36 W. R. 320— North, J. III. PROPEETY. Surrender of Lease.] — The provisions of the Act 11 Geo. 4 & 1 WiU. 4, c. 65, for the surren- der of a lease to which an infant is entitled, apply to a lease to which an infant is only beneficially entitled, the legal estate being vested in a trustee for him. Griffiths, In re, 29 Oh. D. 248 ; 54 L. J., Ch. 742 ; 53 L. T. 262 ; 33 W. R. 728— Pearson, J. Payment out of Court — Attainment of Age according to Law of Domicil.] — Funds in court in this country, placed to the separate credit of an infant domiciled abroad, were paid out to her on attaining her full age, according to the law of her then and native domicil, although she had not come of age according to English law. Sonohoe v. Donohoe, 19 L. R., Ir. 349— V.-C. Small Sum.] — Small sums of money re- presenting shares of infants in a fund in court may be directed to be paid out by the Paymaster- General into the Post-office Savings Bank to accounts in the names of the infants. Mliatt v. MUott, 54 L. J., Ch. 1142— Chitty, J. Stock in Name of Infant— Vesting in Guar- dian — Trustee Acts.]— Stock to which an infant was absolutely entitled under a will was stand- ing in her own name alone. The will contained no direction for maintenance, but the stock con- stituted the only property of the infant, who was domiciled in Scotland, and a Scotch court had ordered that advances should be made out of the capital of her property for the purpose of maintenance : — Held, following the principle of Gardner v. Cowles (3 Oh. D. 304), that the court could make an order under s. 3 of the Trustee Extension Act, 1852, vesting in the guardian of the infant the right to transfer the stock and receive the dividends. Mndlay, In ra, 55 L. J., Ch. 395— North, J. Dquitable Mortgage by a Testator — Power to mortgage Estate.]— By will dated the 12th October, 1881, W. K. devised to W. K. G. certain freehold property of considerable value. The title-deeds of portion of the property had been deposited by W. K. with the National Bank, by way of equitable mortgage, to secure a debt due to them ; W. K. died in October, 1881, and the National Bank having subsequently brought an action in the Chancery Division for recovery of their debt by sale and a receiver, the court, on the application of W. K. G. (who was a minor, and appeared by his guardian), gave him liberty, under the 1 Wm. 4, c. 47, and 2 & 3 Vict. c. 60, to raise and pay the amount of the equitable mortgage by a mortgage of the devised lands. National Banli v. Gourley, 17 L. R., Ir. 367 — V.-C. Sight of Father to charge on Contingent Interest.] — The court refused to declare that sums advanced by a father for the benefit of his infant son were a charge on property to which the son would become entitled only in the event of his attaining twenty-one. Tamner, In re, 53 L. J., Ch. 1108 ; 51 L. T. 507— Kay, J. Semble, the court has no jurisdiction to make such a charge, and the only proper form of order in such a case is that in AroueMe, In re, (14 W. E. 435). lb. Bailiff for Infants— Possession as Guardian by Nurture — Liability to Account.] — The owner of a public-house and cottages devised them to his widow during her life or widow- hood, with remainder to his four infant chil- dren. His widow married again, but continued to reside in and manage the public-house ; and she received the rents of the cottages and maintained the children. One of the children was still an infant married, but she and her husband for some months resided in the public- house. They then left it, and had not since re- ceived anything from the estate of the testator. She and her husband brought an action against her mother for one-fourth of the rents and profits : — Held, that after her second marriage the mother was in possession as bailiff for her infant children, and not as guardian by nurture, or by leave of her children, or as a trespasser, and was therefore a trustee and liable to account ; that though on the daughter's marriage the right to receive the rents passed to her husband, this did not change the character of the mother's possession, and that it was not changed when the daughter came of age : — Held, therefore, that the mother was liable to account to the daughter and her husband for the rents and profits. Wall V. Stanmcli, 34 Ch. D. 763 ; 56 L. J., Ch. 501 ; 56 L. T. 309 ; 35 W. R. 701— Kekewich, J. 971 INF ANT —Maintenance. 972 Tenants in Common — Beceipt of Bents by Father.] — A father was entitled in fee to an undivided moiety of gavelkind land, the other moiety of which belonged to his vyife in fee. She died in May, 1870, leaving two sons, Samuel and John. John was then an infant. He attained twenty-one in 1877, and died in May, 1884. On the mother's death her moiety descended to her two sons in equal shares, as her co-heira by the custom of gavelkind, but the father was by that custom entitled to a moiety of the rents of her moiety so long as he remained a vridower. On the mother's death he entered into the receipt of the whole of the rents of her moiety, and continued in possession, without accounting to his sons or acknowledging their title in writing, for more than twelve years. On the death of John in 1884, his interest descended to his brother Samuel as heir of the mother. In February, 1884, the father had married a second wife, and in November, 1884, he died :— Held, that, as to that one-eighth of the property to which John became entitled in possession on the death of his mother, the father must be taken to have entered into receipt of the rents as bailiff, for his infant son, and that, consequently, the title of John was not barred by s. 12 of the act 3 & 4 Will. 4, c. 27, and that his brother Samuel was entitled to that one-eighth. But held, that, as to Samuel's own one-eighth the same pre- sumption did not arise, and that, there being no evidence that the father had received the rents as agent for Samuel, or had before the expiration of the statutory period acknowledged his title in writing, or accounted to him for the rents, the title to that one-eighth was barred by the statute. Consequently, Samuel was entitled to three-eighths of the whole property and the remaining five-eighths passed under the father's will. Jlobis, In re, SoUs v. Wade, 36 Ch. D. .553 ; 57 L. J., Ch. 184 ; 58 L. T. 9 : 36 W. E. 445 — Korth, J. IT. MAINTENANCE. Conveyancing Act — Contingent Legacy.]— Trustees cannot, under section 43 of the Convey- ancing Act, 1881, apply the income of an infant's contingent legacy for the benefit of the infant, unless the income will go along with the capital of the legacy if and when such capital vests. ■ludHiCs Trusts, In re, 25 Ch. D. 743 ; 53 L J Ch. 496 ; 50 L. T. 200; .82 W. B. 407— Kay, J. "' S. 43 of the Conveyancing and Law of Pro- perty Act, 1881, empowering trustees to apply towards the maintenance of an infant the income of property held in trust for him contingently on his attaining the age of twenty-one years, does not authorise the allowance of maintenance where, apart from the act, the infant, on attain- ing twenty-one would only be entitled to the legacy without interest. Dickson, In re. Hill v. Grant, 29 Ch. D. 331 ; 54 L. J., Ch. 510 : 52 L. T 707 ; 33 W. R. 511— C. A. " Contrary Intention."]— A testator gave a fund to trustees, on trust for all the childi-en of A. equally, who being sons should attain twentyrone, or being daughters should attain twenty-one, or marry, with benefit of survivor- ship amongst them, a,nd he directed his trustees to accumulate the income of the shares of the children, and to pay the same to them as and when their presumptive shares should become BireVs Trustees^ In payable under the previous trust : — Held, that the will did not express a " contrary intention " vrithin the meaning of a. 43 of the Conveyancing Act, 1881, and that,' the children being infants and unmarried, the trustees might at their dis- cretion apply the income of the trust f uncj in op towards the maintenance and education of the infants. Tlmtclier's Trusts, In re, 26 Oh. D. 426 ; 53 L. J., Oh. 1050 ; 32 W. E. 679— Pearson, J. Dividends — Payment to Father.] — Accrued and future dividends of the fortune of l^hree minors were ordered to be paid to their father, he undertaking to apply the dividends to their maintenance, clothing, and education ; and the court being satisfied tihat under the special cir- cumstances of the case such order would be for the benefit of the minors. re, 15 L. E., Ir. 380— M. E. Honey invested in Name of Infant— Ac- cumulations. ] — On the 7th of June, 1880, A. K., an infant, became absolutely entitled under the will of S. H. to a sum of consols standing in the name of J. K., one of the trustees of the will, deceased, and A. K.'s own name, being part of a trust fund under that will. This was a petition to obtain a vesting or other order for the purpose of dealing with the dividends on the consols. No guardian of A. K. was appointed by the will or otherwise. A. K. was born on the 6th March, 1879. On the 21st April, 1888, at the suggestion of the judge, it was ordered that the proper officer of the Bank of England do, during the minority of the said infant petitioner A. K., invest the dividends now due and hereafter to accrue due on the consols. On the 10th May, 1888, the bank wrote refusing to act on the order. The court now made an order directing the dividends to be paid to the present trustees of the will of S. H., for the benefit of the infant. Kemp, In re, 59 L. T. 209 ; 36 W. E. 729— Kay, J. Power of Trustees — Unlimited Duration.] — A testator by his will, after giving certain annuities to his daughters and a granddaughter, directed his trustees to accumulate the surplus income after providing for these annuities until the death of all his daughters, when the period of distribution was fixed ; and, after other pro- visions, the will contained a power of main- tenance which was unlimited in duration of time, and expressed to be exercisable during the lifetime of the daughters. Superadded to the power of maintenance was another trust for accumulation of surplus income not applied in maintenance. Upon an application to the court by the trustees for directions whether the in- come of the testator's estate was applicable for the maintenance and education of the testator's grandchildren : — Held, that the power of main- tenance was unlimited ; that there was not suffi- cient evidence upon the face of the will of an intention to cut down the terms of the power of maintenance, which operated as well during the continuance as after the expiration of the trust for accumulation ; and that the grandchildren were therefore entitled to have the income ol the testator's estate applied towards their main- tenance and education. Smeed, In re. Archer V. Prall, 54 L. T. 929— Chitty, J. Discretion of Trustees — Ability of Father to Maintain. ] — J. B. M. having absolute power to 973 INFANT — Maintenance. 974 dispose of property, devised it to her husband J. M. for life, in trust that he should " apply the same, or as much thereof as he should from time to time think proper, for or towards the main- tenance and education, or otherwise, for the benefit of my son D. M., and shall and do invest the unapplied income, &o., in such stocks, &o., as the said J. M. in his absolute and uncontrolled discretion shall think fit, with power to him at any time, and from time to time, to use and apply all or any part of such accumulated in- come for the benefit of my said son, or to pay the same over to him as the said J. M. may from time to time think proper : " and after the death of J. M., she devised the property, and all accumulations which should not have been ap- plied or paid over in trust for his son D. M. absolutely ; and if he should die in the lifetime of his father J. M., to J. M. absolutely. After the testatrix's death, J. M, received the rents and maintained his son in a manner suitable to his rank until his own death. Independently of the testatrix's property he was during his life of ability to maintain his son, J. M. having died, his administratrix in an action brought by V. M. claimed credit for a considerable sum for the maintenance and education, &c., of the minor by J. M. during several years. It was sought, on behalf of the plaintiff, to have this credit dis- allowed on the ground that the father, having been of sufficient ability to maintain and educate his child, was not entitled to apply any of the trust funds for that purpose : — Held, that J. M. was under the testatrix's will entitled (notwith- standing his own ability) to apply so much of the income of the trust funds as he should from time to time think proper for and towards the maintenance and education, or otherwise for the benefit, of his son D. M. Malcomson v. Mal- comson, 17 L. E., Ir. 69 — C. A. Jurisdiction of Court to Control,] — A female infant was entitled contingently on her attaining twenty-one or marrying, to a fund of which her deceased mother had been tenant for life. The trustees had power to " apply all or any part " of the income (about 538Z. a year) for her maintenance and education. On a sum- mons in the matter of the infant. Bacon, V.-C, held that he had jurisdiction to control the dis- cretion of the trustees as to the quantum to be allowed, and made an order on them to pay iOOl. a year to the father for her maintenance and education. The trustees appealed, and in answer to an inquiry by the court, stated their intention to allow 250Z. to the father for her maintenance and education : — Held, that the order of the Vice- Chancellor was irregular, and must be discharged, the court having no juris- diction on a summons in the matter of an infant to make any order for payment by trustees or other persons. Lofthouse, In re, 29 Ch. D. 921 ; 54 L. J., Ch. 1087 ; 53 L. T. 174 ; 33 "W. E. 668 — C.A. Whether the court could control the discretion of the trustees as to the amount to be allowed for maintenance and education, so long as such discretion was honestly exercised, quaere. li. Child assigning Interest.] — A testator directed ^is trustees, after the death of his wife, to apply the income of his estate "in and towards the maintenance, education, and ad- vancement of my children in such manner as they shall deem most expedient until the youngest of my said children attains the age of twenty-one years," and on the happening of that event he directed them to divide his estate equally among all his children then living. The testator left four children, two of whom at the death of the widow in 1884 were of age, and the youngest was in his seventh year. After the decease of the widow the trustees paid each of the adult children one-fourth of the in- come, and applied the other two-fourths for the benefit of the minors equally till 1886, when J. S. C. the eldest son, made an absolute assign- ment for value of all his interest under the tes- tator's will to H. The trustees declining to pay one-fourth of the income to H. he took out a summons to have the construction of the will determined : — Held, that no child of the testator was entitled, prior to the attainment of twenty- one by the youngest of the testator's children, to the payment of any part of the income, and that the trustees were entitled to apply the in- come for the maintenance, education, or advance- ment of the children, including J. S. C, in their absolute discretion ; that H. was entitled to no interest in the income except such moneys or property, if any, as might be paid or delivered or appropriated for payment or delivery by the trustees to J. S. C, and that the trustees could not pay or deliver to J. S. C. money or goods forming part of the income or purchased out of the income, for that such moneys and goods so paid or delivered, or appropriated to be paid or delivered, would pass by the assignment. Cole- man, In re, Henry v. Strong, 39 Ch. D, 443 ; 58 L. J., Ch. 226 ; 60 L. T. 127— C. A. Charge on Infant's Eeal Estate.] — Two in- fants were entitled to successive estates tail in remainder after the life estate of their father, which life estate had been sold under his bank- ruptcy. There being no income applicable to the maintenance of the linfants, an application was made on their behalf that a yearly sum might be allowed for that purpose, and bor- rowed on the security of a mortgage or charge on the real estate to which they were entitled as above. The amount for which the charge was to be given included the premiums on the in- surance requisite for the protection of the lender :— Held, that an order sanctioning the scheme could not be made, and that the prin- ciple of Howarth, In re (8 L. E., Ch. 415) would not support it, for that, although judgment might be recovered against the infants for necessaries supplied to them, it could not be recovered for premiums on the policies, and, moreover, judgment could not be recovered against one infant for necessaries supplied to the other, and a judgment would not charge the estates of the infants, inasmuch as those estates were so circumstanced that they could not be delivered in execution. Hamilton, In re, 31 Ch. D. 291 ; 55 L. J., Ch. 282 ; 53 L. T. 840 ; 34 W. E. 203— C. A. Five infants were entitled to successive estates tail in real estate after the death of their grand- mother, who was tenant for life. There being no income applicable for the maintenance of the infants, an application was made in an action on their behalf, that a sum of money for past maintenance, and certain annual sums for future maintenance, should be raised on the security of a charge on the estate ; the tenant for life 975 INFANT — Guardians— Ward of Cov/rt. 976 Deing willing to release her life estate in a por- tion of the property so as to give the first tenant in tail an estate in possession, and to join in the necessary deeds : — Held, that such an order could not be made. Homarth, In re (8 L. E. Oh. 415) distinguished and doubted. Cad-man v. Cadman, 33 Ch. D. 397 ; 55 L. J., Ch. 833 ; 55 L. T. 569 ; 36 W. E. 1— C. A. One Guardian allowed to receive Money — Voucher of Items of Expenditure.] — H. and C. were trustees and executors of a will, and guardians of the testator's daughters. The daughters during their infancy were maintained by 0., and H. allowed him to receive the income for that purpose. After they attained majority judgment was given for administration of the testator's estate, in which the usual accounts of the personal estate were directed, and an inquiry how and by whom each of the daughters was maintained during infancy, and what was proper to be allowed and to w^hom out of the income of her share for her maintenance and education. A dis'pute having arisen in taking the accounts and inquiry, H. applied for a declaration that the receipts by C. of the income of the shares of the daughters for maintenance were a good dis- charge to H., and that H. was not to be called upon to produce vouchers in respect of the par- ticular manner in which the income was applied. Kay, J., made an order expressing the opinion of the court that the accounts of the trustees should be taken as directed by the judgment as between guardian and ward, and ordering H. to pay the costs of the application : — Held, on ap- peal, that H., as trustee, was not discharged by mere evidence of payment of the income to C, his co-guardian, but that under the inquiry, H. was not bound to vouch the items of expendi- ture ; and if it was shown that C. had properly maintained and educated the children, the sum proper for that purpose would be allowed against the balance found due on the account, without Touching the details of the application. Evans, In re, Welch v. Channell, 26 Ch. D. 58 ; 53 L. J., Ch. 709 ; 51 L. T. 175 ; 32 W. E. 736— 0. A. Jurisdiction of iCourt to Order, out of Accu- mulations.] — See post, Will, V. k. v. V. GUAEDIANS. Appointment of — Jurisdiction — British Sub- ject horp Abroad.] — If an infant be born abroad whose paternal grandfather was a natural-born British subject, the court has jurisdiction to appoint a guardian of such infant, although the infant is resident abroad, and has no property in this country. A Frenchwoman, who was the toother of such an infant, and entitled by the law of France to the status of natural guardian Of the infant, though not a person who would have been appointed guardian if she and the infant had been domiciled in England, had brought {proceedings in the French courts for the appointment of guardians, which proceed- ings had been directed to stand over until it should be ascertained what course the English courts would adopt : — Held, by Kay, J. , that this was a case in which the English court should exercise its jurisdiction ; and a guardian of the infant was appointed accordingly :^Held by the Court of Appeal, that under the circumstances the decision of the court below was right. Wil- lougJily, In re, 30 Ch. D. 324 ; 54 L. J., Ch. 1122 ; 53 L. T. 926 ; 33 "W. E. 850—0. A. Statutory Guardian resident out of the Jurisdiction.] — Where the mother of infants, whose father died intestate, was permanently resident in England, the court, with her consent, made an order, under the 49 & 50 Vict. c. 27, s. 6, substituting a paternal uncle of the infants as their guardian. Form of procedure in such cases. Lemons, In re, 19 L. R., Ir. 675 — L. C. See also Callaghan, In re, infra, Beligion of Children — Indication of Father's Intention.] — W., a Eoman Catholic, shortlybefore his marriage in 1876, vsdth Miss D., a Protestant, vprote to the priest of his parish, applying for a dispensation, and promising to have the children (if any) brought up as Eoman CathoKcs. About the same time he also wrote three letters to Miss D.'s mother, stating that he had no objection to the children being baptized by a Protestant clergyman, but that circum- stances might aaise compelling him to have them baptized Eoman Catholics, which, how- ever, would in no way bind him to have them brought up in that faith ; that the matter pre- sented no difficulty except baptism ; that the future did not depend on any ceremony, but on his own will or honour ; and that as to guardian- ship, on no consideration would he " permit any- one to step between [his intended wife] and her children," but " would by will leave her sole and undivided authority." The dispensation for the marriage was obtained from the Eoman Catholic bishop, but W. did not avail himself of it, and his marriage with Miss D. was celebrated by a Protestant clergyman only. A child, C, was born in 1878, which was, with W.'s sanction, baptized as a Roman Catholic. W. having died intestate in 1879, his widow (C.'smother),in 1883, presented a petition as next friend, praying to have C. made a ward of court and herself ap- pointed guardian : — Held, that upon the whole, the facts afforded a sufficient indication of W.'s intention that his children should, after his death, be committed to the guardianship of their mother, and an order simply to that effect was made vrith respect to 0. Walsh, In re, 13 L. E., Ir. 269 — L. C. See also Seanlan, In re, post, col. 980. Administration with Will annexed granted to,] — See Will (Letters op Administea- tion). Guardian ad litem,] — See infra, IX, VI. WAED OF COUET. Who is— Payment into Court— Alien Infant Eesident Abroad.] — ^A legacy had been paid into court to which, on the death of the tenant for life, two female infants, who were French subjects by birth, and resident in France, became absolutely entitled. They were both married, and, by the French law, under the settlements made on their respective marriages, their husbands were abso- lutely entitled to receive their shares of the fund. One of the infants had since attained twenty- one : — Held, that the infants, not being subjects of, or domiciled, or resident in England, the court had a discretion as to whether or not they should 977 mFANT— Custody. 978 be treated as wards of court, and that the money might therefore be paid out to the husbands. Brown v. Collins, 25 Ch. D. 56 ; 53 L. J., Ch. 368 ; 49 L. T. 329— Kay, J. Whether, in any case, the mere fact that there is a fund in court to a share in which an infant is entitled, makes the infant a ward of court, qusere. Be Pereda v. De Manclia (19 Ch. D. 451) doubted on this point. li. Leave to take Ward out of the Jurisdiction.] — A resident in Jamaica died leaving two children, who were born there, and resided there with their mother till 1875, when the elder, a daughter, was sent to England to be educated. The mother came to England in 1876 to place her son at school, and returned to Jamaica in 1878. In 1880 she came to England to see her children and had remained there, the daughter, upon leaving school, living with her. With the above exceptions, the mother had always lived in Jamaica, and regarded it as her home. She now wished to return thither permanently, and to take with her the daughter aged twenty years and three months, the sou, who was apprenticed to an engineer, remaining in England. The children were wards of court, and the mother had been appointed by the court sole guardian : — Held, that leave may be given to take a ward out of the jurisdiction without a case of necessity being shovm, the court having only to be satis- fied that the step is for the benefit of the ward, and that there is sufficient security that future orders will be obeyed. Leave was accordingly given upon a relative resident in England being appointed guardian along with the mother. Callaghan, In re, Elliott v. Lambert, 28 Ch. D. 186 ; 54 L. J., Ch. 292 ; 52 L. T. 7 ; 83 W. E. 157— C. A. VII. CUSTODY. Age of Nnrtmre — Lunatic Mother — ^Removal Order.] — The court will, in the exercise of its discretion, and under exceptional circumstances, such as the dangerous lunacy and improbable recovery of the mother, order the removal of a child within the age of nurture from her care, notwithstanding the rule established by Reg. v. Birmingham (5 Q. B. 210), that a child within the age of nurture cannot be separated from its mother by order of removal even with her consent. B^g. v. Barnet Union, 57 L. J., M. 0. 39 ; 58 L. T. 947 ; 52 J. P. 611 — D. Bight of mother — Breach of Marital Duty by Father — Tender Tears.] — In determining whether the custody of an infant child ought to be given to or retained by the mother, the court will take into consideration three matters — the paternal right, the marital duty, and the interest of the child. For this purpose the marital duty includes, not only the duty which the husband and wife owe to each other, but the responsibility of each of them towards their children so to live that the children shall have the benefit of the joint care and afiection of both father and mother. In a case where a father had committed a breach of the marital duty as thus defined : — Held, for this among other reasons, that the mother, in whose custody two children of the marriage of tender years were, ought to retain the custody until • further order. Elderton, In re. 25 Ch. D. 220 ; 53 L. J., Ch. 258 ; 50 L. T. 26 ; 32 W. K. 227 ; 48 J. P. 341— Pearson, J. In the exercise of its discretion under 36 & 37 Vict. c. 12, s. 1, and s. 25, sub-s. 10, of the Judi- cature Act, 1873 (36 & 37 Vict. c. 66), the court will look at all the surrounding circumstances before they will accede to the application of the father of a female child of tender years to remove her from the custody of the mother and other relations whose conduct with regard to the child is unimpeaohed, and place her under his control. A mariner who had no fixed home, and who had already married a woman who left him and went to America more than seven years before and (as he said) died there, went through the ceremony of maiTiage with another woman at a registry- office at Portsmouth. Shortly after her mar- riage, the second wife, being informed by a, stranger that she had received a letter from the first wife, after the ceremony at the registry- office, quitted her supposed husband, and went to reside with her parents at Southampton, where she gave birth to a female child. She afterwards took proceedtugs against her husband for bigamy; but, for want of proof that the first wife was living at the time of the second marriage, these became abortive. The child having reached the age of nine, the father (without showing any efforts to ascertain whether his first wife was living or not) applied to a judge at chambers for a habeas corpus to obtain its custody. The judge refused the application. The father appealed. The court, — -not being satisfied that the second was a valid marriage, or that the father was in a position properly to maintain and educate the child : — Held, that the judge had wisely exer- cised his discretion, and dismissed the appeal, and also that the failure of the prosecution for bigamy was not entitled to any weight upon a motion of this kind, Brown, In re, or Howe, In re, Rome v. Smith, 13 Q. B. D. 614 ; 51 L. T. 793 ; 33 W. E. 79— D. Infant above Sixteen — Free Access to Mother restricted — Jurisdiction.] — A father has a legal right to control and direct the education and bringing up of his children until they attain the age of twenty-one years, even although they are wards of court, and the court will not inter- fere with him in the exercise of his paternal authority, except (1) where by his gross moral turpitude he forfeits his rights, or (2) where he has by his conduct abdicated his paternal authority, or (3) where he seeks to remove his children, being wards of court, out of the juris- diction without the consent of the court. Agar- JSllis, In re, Agar-Ellis v. Lascelles, 24 Ch. D. 317 ; 53 L. J., Ch. 10 ; 50 L. T. 161 ; 32 W. E. 1— C. A. A father put restrictions on the intercourse between his daughter, in her seventeenth year, who was a ward of court, and her mother, on the plea that he believed the mother would alienate the daughter's affections from him. The court refused to interfere. Ih, Mixed Marriage — Christian and Mahom- medan.] — S., an Englishwoman, had married, according to the Mahommedan ritual, N., a Hindoo Mahommedan, he being already married. The children of this marriage had been recog- nized by N. as his children and his heirs according to Mahommedan law. By an agree- ment between S. and N. the children were 979 INFANT — Religious Education. 980 brought up as Mahommedans, and S. and N, having separated, they went with their father to India, and remained there until the father's death, four years afterwards. By his will, N. appointed certain persons guardians of the children. S. now moved that an order might be made giving her the custody of her children, as she admitted that her union with N. was not a marriage, and therefore contended that, as her children were illegitimate, she had the right to the custody of them : — Held, that S. had no absolute right to the custody, and the court would consider what was best for the interests of the children, and having regard to the nature of their birth, the religion in which they had been educated, and the mode of life which had been adopted for them, it was best for them to remain in the custody of the guardians whom the father had appointed. Ullee, In re, 54 L. T. 286— C. A. Befusal of Wife to Live with Husband.] — A wife left her husband's home without any reason- able cause, taking with her their only child. The court, on the petition of the husband, ordered the wife forthwith to deliver the child into the hands of the petitioner, with liberty to either party to apply in chambers as to access to the child. Constable v. Constable, 34 W. K. 649— North, J. Separation Deed — Beligious Education- Authority— Infants' Custody Act, 1873.]— The words " custody or control," in s. 2 of the Infants' Custody Act, 1873, comprise all the rights which a father has over his children, including that of directing their religious education. A motion was made by the mother of a female infant eight years of age, for the exclusive control of the education (religious and otherwise) of the infant and that the father's access might be limited to thirteen weeks of the year during the child's holidays. The father, who was a Roman Catholic, was married to the mother, a Protestant, in 1878. In July, 1881, a separation deed was executed, containing a declaration that the wife should have the absolute custody and control of the infant until the deed should be mutually put an end to and revoked by the parties, without any interference of or by the husband. The father had not seen the child for three years and a half, and no reason for his not doing so was alleged. An order had been made in an action to admin- ister the trusts of the separation deed, the mother undertaking not to bring up the child in any manner at variance with the Roman Catholic faith. The father was without means to main- tain the child : — Held, that it was for the benefit of the infant to give efiect to the agreement in the separation deed; and that it should be enforced accordingly. Condon v. Vollum, 57 L. T. 154 — Chitty, J. Guardianship of Infants Act — misconduct of Pather — No Limit as to Age. ] — Where a mother applied by petition to the court for the custody of her boy, aged ten years, on the ground of the misconduct of the father : — Held, that under s. 5 of the Guardianship of Infants Act, 1886 (49 & 50 Vict. c. 27), the court had jurisdiction to make such order as it might think fit regarding the custody of such infant, and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father. The court has jurisdiction to order the delivery of the infant to the custody of its mother, without fixing any limit of age. Witten, In re, 57 L. T. 836— Kay, J. In a suit by the wife for divorce on the ground of adultery coupled with cruelty, which was of an aggravated character, the court, after pro- nouncing a decree nisi, made an order under s. 7 of the Guardianship of Infants Act, 1886, declaring the respondent, who did not appear to oppose the application, to be an unfit person to have the custody of the children. Skinner v. Shinner, lit P. D. 90 ; 57 L. J., P. 104 ; 58 L. T. 923 ; 36 W. E. 912 ; 52 J. P. 406— Hannen, P. Under Separation Deed.] — See ante, col. 913. After Decree in Divorce Proceedings.] — See ante, cols. 903, 904. VIII. RELIGIOUS EDUCATION-. Guardianship of Infants Act, 1886.]— The Guardianship of Infants Act, 1886, does not affect the right of the father to determine the religion in which his children shall be brought up after his death. Soanlan, In re, 40 Ch. D. 200 ; 57 L. J., Ch. 718 ; 59 L. T. 599 ; 36 W. E, 842— Stirling, J. Abandonment of Bight by Father — Guardian.] — The children of a Protestant father and Roman Catholic mother, aged respectively ten, nine, and three years, were with the assent of the father educated as Roman Catholics for three years, and his two elder children were admitted to communion according to the rites of that faith. At the end of that period, the father, being then dependent for support upon the Protestant clergy of his parish, caused his children to be educated as Protestants, and expressed a wish that they should thenceforth be brought up in that religion. He died in the following year in the lifetime of the mother, without appointing a guardian : — Held, that the father had not by his conduct abandoned the right to have his children brought up in his own religion ; and, under the circum- stances of the case, that a member of the Church of England ought to be appointed a guardian to act jointly vrith the mother. lb. See also Walsh, III re, ante, col. 976. Mother out of Jurisdiction.] — Infants in- terested in real estate in England!, whose father was dead, were living in charge of their mother, who was resident out of their jurisdiction, and was one of their testamentary guardians. At the instance of their other two guardians an order was made declaring in what faith they ought to be educated. Montagu, In re, Montagv, v. J/'esting, 28 Ch. D. 82 ; 54 L. J., Ch. 397 ; 33 W. R, 322— Pearson, J. Effect of Separation Deed.] — See Condon >. Vollum, supra. IX. ACTIONS AND PROCEEDINGS BY AND AGAINST. Guardian ad litem.] — See next case and Iioiondes, In re, post, col. 983. 981 INFANT — Actions and Proceedings by and against. Next Friend— Married Woman.]— S. 1, sub-s. 2, of the Married Women's Property Act, 1882, does not abolish the rule that a married woman is incapable of filling the office of next friend, or guardian ad litem. Somerset (Buke), In re, Thynne v. St. Mmr, 34 Ch. D. 465 ; 56 L. J., Ch. 733 ; 56 L. T. 145 ; 35 W. E. 273— Ohitty, J. Bemoval of.] — Doubts having arisen as to the proper custody of an infant, a suit was commenced in her name for the administration of her father's estate. A next friend was appointed, who was a friend of the defendants, the executors and trustees of the will, and guardians of the infant, and accepted the office at their request, and on an indemnity from their father. The solicitors on the record for the plaintiff were the solicitors of the executors. On an application in the name of the infant by M., the husband of her paternal aunt, as next friend pro hac vice, to remove the next friend and substitute M. : — Held, that although nothing was alleged against the character, circumstances, or conduct of the next friend, his connexion with the executors made him an improper person to act as next friend, and that he ought to be removed and M. substituted. Burgess, In re. Burgess \. Bottomley, 25 Ch. D. 243 ; 50 L. t! 168 ; 32 W. E. 511— C. A. On an application by the next friend of an infant plaintiff for the removal of a receiver in the action, the court refused the application, but expressed dissatisfaction with the general con- duct of the next friend, and ordered that the official solicitor should be named as the next friend of the infant in all future proceedings, and that the next friend should deliver up all documents to him. On appeal, this order was discharged, on the ground that although the court had, on a proper application, jurisdiction to remove a next fciend, such a course ought not to be taken without giving the next friend an opportunity of explaining his conduct. CorselUs, In re, Lawton v. Mlwes, 50 L. T. 703 ; 32 W. E. 965— C. A. A father authorised a stranger to act as next friend to his infant children ; he died, having by will .appointed his wife, their mother, guardian of his children : — Held, that the mother had the right to remove the next friend and be substi- tuted in his place. Hutchinson v. Norwood, 31 Ch. D. 237 ; 55 L. J., Ch. 375 ; 54 L. T. 15 ; 34 W. E. 214— Pearson, J. Affidavit of Documents by.] — The court refused either to order the next friend of an infant plaintiff to make an affidavit as to docu- ments, or stay the action till he made such affidavit. Byke v. Stephens, 30 Ch. D. 189 ; 55 L. J., Ch. 41 ; 53 L. T. 561 ; 33 W. E. 932^ Pearson, J. ■—. — Costs— Solicitor and Client — ReverpjLon.] ^When the costs of infant plaintiffs suing by their next friend are directed to be paid out of a fund in court to which the infants are entitled in reversion, party a,nd party costs only will be immediately paid ; the next friend having liberty to apply for the difierence between those costs and costs as between solicitor ^nd client when the fund comes into possession. 983 Bamant v. Hennell, 33 Ch, D. 224 ; 65 L. T. 182 ; 34 W. E. 774— StirUng, J. Personal liability of Solicitor for Costs of Infant Defendant.] — Where a writ of summons is served on an infant, and an appearance entered for him by a solicitor without know- ledge of his infancy and bona fide, and costs are subsequently incurred by the plaintiff in proceedings in the action, which became abor- tive by reason of the defendant's infancy : — Held, that although the appeai-ance and defence will be set aside as irregular, the solicitor entering the appearance is not personally liable for the costs thereby occasioned by the plaintiff. Wade V. Keefe, 22 L. E., Jr., 154— Q. B. D. Change of Parties by Birth.] — See Pkactice (Parties). notion for Judgment — Default ef Pleading — ^Infant Defendants.] — On a motion for judg- ment in default of pleading by the plaintiffs in a partition action, some of the defendants being infants : — Held, that it was not necessary that any affidavit should be made verifying the state- ments in the statement of claim. Bipley v. Sawyer, 81 Ch. D. 494 ; 55 L. J., Ch. 407 ; 54 L. T. 294 ; 34 W. E. 270— Pearson, J. The defence of two infant defendants in an ejectment action was withdrawn under an order of court. The other defendants having made admissions, judgment was moved for, supported by an affidavit proving the statement of claim -. — Held, that the correct course where infants are parties, and their defence is vrithdrawn and judgment is moved for, is to prove the state- ment of claim by affidavit. Gardner v. Tapling, 33 W. E. 473— North, J. Where there are minor defendants who do not file any defence, the proper course is to move for judgment against such defendants under Ord, XXXIX. r. 1, grounding the motion upon affi- davits verifying the statement of claim. Wallis V. Wallis, 13 L. E., Ir. 258— V.-C. Foreclosure — Parties — Settlement.] — By a post-nuptial settlement, lands of which the wife, before the marriage, had been seised in fee, were settled, subject to successive life estates for hus- band and wife, upon the children of the m arriage, reserving to the husband and wife power of revocation, and power to charge the lands with 1,000Z. The husband and wife executed a second settlement, conveying the lands in trust for the wife for her separate use during their joint lives, and, subject thereto, and to an annuity for the survivor, in trust for the children of the marriage. Afterwards both husband and wife purported to mortgage the lands in fee. In a suit for fore- closure and sale, instituted by the mortgagee against the husband and wife and the trustee of the second settlement, an order was made deplaring the mortgage well charged on the lands, and directing a sale. The children were at the date of the order infants, and were not named as respondents in the petition or repre- sented by the guardians in the matter : — Held, that the order was not binding on the children. Some of the children sold their shares, and con- veyed them to the purchasers subject to the mortgage : — Held, that the mortgage was not thereby converted into a, valid charge on the 983 INFOEMATION. 984 shares conveyed. BelVs JEstate, In re, 11 L. E., Ir. 512 — Land Judges. Day to show Cause.] — In an action by an equitable mortgagee, without any memoran- dum of deposit of title-deeds, against the widow and infant heir-at-law of the mortgagor for fore- closure : — Held, on motion for judgment, the defendants not haYJug appeared, that the infant heir must be ordered to convey the estate when he attained the age of twenty-one years, and that he must have a day to show cause in the usual way. Price v. Carver (3 My. & Cr. 157) followed. Mellor V. Porter, 25 Ch. D. 158 ; 53 L. J., Ch. 178 ; 50 L. T. 49 ; 32 W. E. 271— Kay, J. Judgment for foreclosure was made absolute against an infant without giving time to show cause, the mortgagee offering to pay the infant's costs as between solicitor and client, and the guardian of an infant being of opinion that it was for the benefit of the infant that the order should be made, and there being evidence that the mortgage debt greatly exceeded the value of the property. Ymmge v. Cocker, 32 W. B. 359 — Chitty, J. Bringing Infants before Bankhiptcy Court — Avoidance of Settlement.] — When it is desired to bring an infant before the court, the proper course is to apply for the appointment of a guardian ad litem. Where on an appeal from a county court, the divisional court in bank- ruptcy directs such appeal to stand over in order that certain persons, some of whom are infants, may be made parties, it would appear that an application for the appointment for a guardian ad litem should be made to the county court. Trustee, Ex parte, Lonmdes, In re, 3 M. B. E. 216— Cave, J. Administration Action — Staying Proceedings — Infant Defendant.] — Where some of the de- fendants in an administration action offered to satisfy the whole of the plaintiff's claim and the costs of the action, the court refused to stay the proceedings unless the rights of an infant defen- dant interested in the suit were also provided for. Clegg v. Clegg, 17 L. E., Ir. 118— V.-C. Fartition — Sale out of Court.] — Where some of the parties beneficially interested are not sui juris, and the trustees have no power of sale under their trust deed, there is no jurisdiction under the Partition Act, 1868, s. 8, to order a sale out of court. Strugnell v. Strugnell. 27 Ch. D. 258 ; 58 L. J., Ch. 1167 ; 51 L. T. 512 ; 33 W. E. 30— Chitty, J. Order against Infant Trustee to Account.] — In an action against trustees of a settlement, asking (inter alia) that each should furnish and vouch their accounts of the trust declared thereby, one of the trustees (E.) had only recently attained twenty-one. Bacon, V.-C, directed that in taking the account, the same was, as regards E., to be limited to any moneys and properties received by him since he attained twenty-one. On appeal, the court, without then determining the liability of such infant trustee, held that the proper form of decree was to order the account against the adult trustee in the usual form, directing an inquiry whether all or any and what parts of the trust property had come to the hands of E., and what had been his dealings and transactions in respect of the same, and as to the dates of, and circumstances attend- ing, such receipts, dealings, and transactions. GarTies, In re, Games v. Applin, 31 Ch. D. 147 ; 55 L. J., Ch. 303 ; 54 L. T. 141 ; 34 W. E. 127— C. A. INFERIOR COURT. See COUET. INFORMATION. Who may Present — Attorney -General for Duchy of Lancaster.] — It is not competent to the Attorney-General of the Duchy of Lancaster to exhibit an information in the High Court of Justice, and the court will order an information exhibited by him to be taken off the file on the application of the defendant even after answer put in by him. Attorney- GcTieral (Duchy of Lancaster') v. Devonshire QDuJie'), 14 Q. B. D. 195 ; 54 L. J., Q. B. 271 ; 33 W. E. 367— D. Appeal to Court of Appeal — " Criminal Matter" — Parliamentary Oaths Act, 1866.]— Upon the trial of an information at the suit of the Attorney- General against a member of the House of Commons for voting without having taken the oath of allegiance within the meaning of the Parliamentary Oaths Act, 1866, as amended by the Promissory Oaths Act, 1868, judgment was given for the Crown, and the Divisional Court refused to grant a rule for a new trial, on the ground of misdirection and misreception of evidence. On application by the defendant to the Court of Appeal : — Held, that the Court of Appeal had power to hear the application and to grant a new trial in such a case. — By Brett, M.E., and Lindley, L.J., Cotton, L.J., doubting, an information at the suit of the Attorney- General to recover penalties under s. 5 of the Parliamentary Oaths Act, 1866, from a member of Parliament for voting without having taken the oath of allegiance required by that statute, as amended by the Promissory Oaths Act, 1868, is not a " criminal cause or matter " within the meaning of the Supreme Court of Judicature Act, s. 47, and an appeal may be brought from any order or judgment therein of the High Court to the Court of Appeal : — By Brett, M.S., on the ground that the information is in its nature a civil proceeding, and, therefore, that an appeal lies under the Supreme Court of Judica- ture Act, 1873, s. 19 :— By Lindley, L.J., on the ground that even although the information may be to some extent of a criminal nature, never- theless before the passing of the Supreme Court of Judicature Acts, 1873, 1875, an appeal would have lain under the Crown Suits Act, 1865 (28 & 29 Vict. c. 104), ss. 31, 34, 35, fi-om a decision of the Court of Exchequer to the Court of Ex- chequer Chamber, and that the Supreme Court of Judicature Acts, 1873, 1875, do not take away any right of appeal existing before the passing 985 INJUNCTION. 986 of those statutes. — Semble, by Brett, M.E., that even if the information could be regarded as a crimiual proceeding, nevertheless an appeal would lie, for by the Supreme Court of Judica- ture Act, 1873, s. 47, the right of appeal is taken away only in the case of indictments, of criminal informations for indictable misdemeanors filed in the Queen's Bench Division, and of criminal proceedings before justices. Attoniey-Gene^-al V. Bradlaugh, 14 Q. B. D. 667 ; 54 L. J., Q. B. 205 ; 52 L. T. 589 ; 33 W. E. 673— C. A. Notice of Motion— Not Ex parte.] — ^An appeal lies to the Court of Appeal from any order or judgment made or given by the Queen's Bench Division either during, or afterwards with respect to, a, trial at bar of a civil proceeding, and whether or not the appeal is brought from a decision upon a motion for a new trial on the ground of misdirection or wrongful reception of evidence ; but the appeal must be brought on by notice of motion, an ex parte application for a rule nisi to the Court of Appeal being irregular. lb. INJUNCTION. 1. General Prineiples. 2. In Particular Cases. 1. Genbbal Peinciples. Injnnctian or Damages — Principles on which Courts act.] — The principles upon which the courts act in deciding whether or not to award damages in lieu of an injunction under Lord Cairns' Act, in cases of injury to property, are as follows : — If the defendant, in the injury he is inflictiog, is doing an act which will render the property of the plaintiff absolutely useless to him unless it is stopped, then, inasmuch as the only compensation which could be given to the plaintiff would be to compel the defendant absolutely to purchase the property, the court will not, in the exercise of the discretion given to it by the act, withhold an injunction. Where, however, the injury is less serious, and the court considers that the property may still remain the property of the plaintiff, and be still substan- tially as useful as it was before the defendant's acts, and that the injury, therefore, is of such a nature as can be compensated by money without taking away the property from the plaintiff, the court has and will exercise a discretion to award damages in place of an injunction. JSolland v. Worley, 26 Ch. D. 578 ; 54 L. J., Ch. 268 ; 50 L. T. 526 ; 32 W. E. 749 ; 49 J. P. 7— Pearson, J. lord Cairns' Act — Eepeal.] — The court has power under Lord Cairns' Act to refuse an injunction, although no case is established for granting damages in substitution for the injunc- tion, and in such a case may dismiss an action to enforce a covenant with costs. Sayers v. Collyer, infra. Although Lord Cairns' Act (21 & 22 Vict. c. 27) is repealed by the Statute Law Eevision and Civil Procedure Act, 1883 (46 & 47 Vict. c. 49), s. 3, under sect. 5 the jurisdiction conferred thereby is still in force — Per Baggallay, L. J. Ih. mandatory — Discretion.] — Upon a motion for an interlocutory injunction to restrain an inter- ference with light and air, the defendant gave an undertaking to pull down any building there- after erected or proceeded with, and to abide by any order as to damages ; whereupon the court made no order upon the motion. The defendant subsequently completed his buildings. At the trial of the action, when a mandatory injunction was asked for, it was proved that the defendant's buildings obstructed the plaintiff's ancient lights : — Held, that it was a proper case for the court to grant a mandatory injunction, and not to award damages in lieu thereof, under the dis- cretion given by Lord Cairns' Act. Greenwood T. Sonuey, 33 Ch. 471 ; 55 L. J., Ch. 917 ; 55 L. T. 135 ; 35 W. E. 163— V.-C. B. Interlocutory — Irreparable Damage.] — To warrant the court in granting an interim or interlocutory injunction to restrain persons from pursuing an objectionable course of conduct, those who complain must at least show that they have sustained or will sustain "irreparable damage " — i.e., damage for which they cannot ob- tain adequate compensation without the special interference of the court. Mogul Steamship Com- pany V. Macgregor, 15 Q. B. D. 476 ; 54 L. J,, 540 ; 53 L. T. 268 ; 49 J. P. 646 ; 5 Asp. M. 0. 467 ; 15 Cox, C. C. 740— D. Balance of Convenience.] — On a motion for an interim injunction, the court, holding that the plaintiffs had shown an intention to preserve and not to abandon their ancient lights, and that there was a fair question of right to be tried at the hearing, and considering that the balance of convenience .was in favour of granting an injunction rather than allowing the defendants to complete their building with an undertaking to pull it down if required to do so, granted an injunction till the hearing. JSTewson v. Pender, 27 Ch. D. 43 ; 52 L. T. 9 ; 33 W. E. 243— C. A. Remedy Barred by Acquiescence.] — A building estate was laid out in lots, which were sold by the owners of the estate to different purchasers, each of whom covenanted with the vendors and with the purchasers of the other lots entitled to the benefit of the covenant not to build a shop on his land, or to use his house as a shop or to carry on any trade therein. The purchaser of one of the lots, who occupied his house as a private residence, brought an action against the purchaser of another lot, who was using his house as a beer- shop with an " off " licence to restrain him from breaking his covenaut and for damages. The plaintiff had known for three years before the action was commenced that the defendant was using his house as a beershop, and had himself bought beer at the shop. There was evidence that some of the houses built on other lots had been for some time used as shops notwithstand- ing the covenant, and that some of the house* near the plaintiff's house were occupied, not each by a single tenant, but by two families at weekly rents : — Held, that the change in the character of the neighbourhood was not in itself a ground for refusing relief to the plaintiff, as the change was not caused by his conduct ; but 987 INJUNCTION. that the plaintiff had lost the right to enforce his covenant either by injunction or damages through his acquiescence in the proceedings of the defendant. Duhe of Bedford v. Trustees of the British Museum, (2 My. & K. 552), explained. Savers v. Collyer, 28 Ch. D. 103 ; 54 L. J., Ch. 1 ; 51 L. T. 723 ; 33 W. R. 91 ; 49 J. P. 244— C. A. Per Fry, L.J. : — An amount of acquiescence on the part of the plaiutifi which would not be suf- ficient to bar his action, may be suflSoient to Induce the court to give damages instead of an injunction. IT). Delay.] — A delay of fourteen months by a plaintiff in taking steps to prevent the continuance of a breach of a restrictive cove- nant will not amount to such acquiescence as to disentitle him to an injunction. Northumber- land (Da/ic) V. Bowman, 56 L. T. 773 — Keke- wich, J. . ■ Public Convenience — Breach of Statutory Contract.] — In an action brought to obtain a mandatory injunction to compel the defendants to pull down a goods station and cattle shed which they had erected 140 yards from Bala station, in the face of sub-sect. 6 of sect. 6 of an act which provided, " that at that station there should be no goods or cattle station ; " the plain- tiff had not objected to the buildings till they were nearly completed, owing to his being abroad at the time, and ignorant of their erection until his return. The defendants contended that the buildings in question had not been erected " at " the station, as they were 140 yards off ; that, if they had been, it was for the public convenience they should be there, and that the plaintiff was precluded by his acquiescence from now obtain- ing a mandatory injunction to remove : — Held, that by sub-sect. 6 the defendants had made a statutory contract not to do what the court was •of opinion they had done, so that the question of public convenience did not apply, and that the acquiescence of the plaintiff was not such as would preclude him from obtaining the injunc- tion, but that the court would grant one, com- pelling the defendants to remove the buildings as prayed. Price v. Bala and Festiniog Rail- way, 50 L. T. 787— Chitty, J. Proof of Damage — Building Land— Covenant to erect Houses of certain Value.] — A plaintiff bought certain plots on a building estate subject to certain restrictions ; the defendant subse- quently bought other plots with a restriction as to the value of the house to be erected, but he proposed to build houses of less value : — Held, that the plaintiff in such a case is not obliged to prove damage in order to obtain an injunction. Collins V. Castle, 36 Ch. D. 243 ; 57 L. J., Ch. 76 ; 57 L. T. 764 ; 36 W. E. 300— Kekewich, J. Motion to Discharge for Misrepresentation.] — A motion to discharge an ex parte injunction on the ground of its having been obtained by mis- representation is proper, though the injunction is about to expire. Wimbledon Local Board v. Croydon Sanitary Authority, 32 Ch. D. 421' — North, J. Undertaking as to Damages — Injunction wrongly granted.] — ^Where a plaintiff obtains an interlocutory injunction, upon giving an under- taking in damages, the defendant is entitled to the benefit of the undertaking even though it should afterwards be decided that the injunction was wrongly granted, owing to the mistake of the court itself. Dictum of Jessel, M.R., in Smith V. Day (21 Ch. D. 421), disapproved. Griffith V. Blahe, 27 Ch. D. 474 ; 53 L. J., Ch. 965 ; 51 L. T. 274 ; 32 W. E. 833— C. A. Where an injunction is wrongly granted, an undertaking as to damages given by the plaintiff is equally enforceable whether the mistake was in point of law or in point of fact. In such a case the court has no discretion to refuse an inquiry as to damages unless the damages alleged would be too remote if the defendant were suing in respect of them upon a breach of contract. Sunt v. Hunt, 54 L. J., Ch. 289 — Pearson, J. What losses.] — An army surgeon, living apart from his wife, was under orders to sail for Egypt, and proposed to take some of his children with him. The wife obtained an in- junction to restrain him from so doing, the judge considering that he would be acting in contra- vention of the separation deed between them. The Court of Appeal took a different view of the effect of the separation deed and dissolved the injunction. The husband applied for an inquirj' as to damages occasioned to him by the injunc- tion, in enforcement of an undertaking as to damages given by the wife, alleging loss of free passages to Egypt for the children, loss of pay, and expenses caused by his stay in London : — Held, that the inquiry must be granted. Ih, Where Plaintiff is a Married Woman.] — An application was made on behalf of a married woman for an injunction restraining the Bank of England, until further order, from per- mitting the transfer of a sum of New Three per Cent. Annuities, standing in the names of the executors of a testator, and to which the married woman claimed to be beneficially entitled. An injunction was granted for a fortnight on the usual undertaking of the married woman to he answerable in damages. The registrar refused, to draw up the order on the sole undertaking of the married woman as to d.amages : — Held, that the sole undertaking of the married woman must be accepted. Prynne, In re, 53 L. T. 465— Pear- son, J. Breach of Injunction — Service of Order — Notice — Committal for Contempt.] — It is not the rule on applications for committal for contempt by disregarding an order of the court, that the court will only commit where, there having been time to draw up, enter, and serve the order, such order has been actually served on the offending party. On the contrary, even where the order is ten or eleven months old, and has never been so served, the party disregarding it will be com- mitted if it appears that he really knew of its existence and purport, and wilfully disobeyed it. United Telephone Company v. Bale, 25 Ch. D. 778 ; 53 L. J., Ch. 295 ; 50 L. T. 85 ; 32 W. E. 428— Pearson, J. An attachment may be issued for breach of an injunction, although no writ of injunction has been actually issued, when the defendant, after being served with the decree or order for injunc- tion has disobeyed it. Mining Company of Ireland v. Belany, 21 L. E., Ir. 8— V. C. 989 INJUNCTION. 990 Injunction with Coata — Interim Injunction.] — An order made on notice and continuing an injunction with costs will, in the absence of special directions to the contrary, include the costs of an interim in junction previously obtained on an ex parte application. Blaltey v. Hall, 56 L. J., Ch. 568 ; 56 L. T. 400 ; 35 W. K. 592— Chitty, J. Taxation of Costa on Higher Scale.] — See COSTB, VI. 1, c. i. 2. In Paetictjlar Cases. Breach of Statutory Proyision — No Proof of Actual Damage neceasary.] — Where an act of parliament contains a provision for the special protection or benefit of an individual, he may enforce his rights thereunder by an action, without either joining the Attorney-General as a party or showing that he has sustained any particular damage. The Plymouth, Devonport, and District Tramways Act, 1882, authorised the making of tramways in the adjoining boroughs of P. and D., and provided that the defendant company should not, without the consent of the corporations of P. and D., use for public traflSc any of the tramways mentioned in the act until the whole system was completed, and if either corporation should at any time complain to the Board of Trade that the company were not carrying out this provision, the board might direct an inquiry in the manner prescribed by the act, and the company was to abide by every order made consequent on such inquiry by the board. The company had opened and worked a tramway in P. without the requisite consent, and the corporation of D. moved for an interim in- junction to restrain the company from working the section opened until the whole system in both boroughs was complete : — Held, that the injunction could be granted, as there was nothing in the section of the private act to take the case out of the jurisdiction under the Judicature Act, 1873, to grant an injunction, and that the plain- tiffs were entitled to complain of the breach of the conditions imposed by the private act, without showing that they had thereby sustained any actual damage, ie'eonport (^Mayor) v. Plymouth and Bevomport Tramways Company, 52 L. T. 161 ; 49 J. P. 405— C. A. See Price v. £ala and, JPestmiog Railway, ante, col. 987. Water Company withholding Water — Dispute as to Annual Value.] — Although the statutory remedy provided by s. 68 of the Waterworks Clauses Act, 1847, for the settlement by two justices of disputes as to the annual value of a tenement Supplied with water, and the special remedy by penalties given by s. 43 against a company for withholding water, have not ousted the general jurisdiction to restrain the company by injunction from cutting off the supply of water pending proceedings for setthng a dispute as to value, such injunction will not be granted on the application of an owner or occupier who will not undertake to commence proceedings with due speed before the justices under s. 68. HaywardY. East Lotidon Waterworlis Company, 28 Ch. D. 138 ; 54 L. J., Ch. 523 ; 52 L. T. 175 -Chitty, J. Szercise of legal Power not Bestrained if done bona fide.] — Defendants were lessees of mines with liberty, on giving notice, to make such railways over the surface as they should think necessary or convenient for carrying away the minerals. The plaintiffs, being lessees of other mines under the same lessor, took from him a lease of two closes of the same surface lands over which the defendants' power ex- tended, in order to make a railroad for their minerals. The defendants thereupon gave notice that they required part of the surface lands for continuing a siding they already had communicating with a neighbouring railway, and proceeded to construct a siding on the same two closes which had been leased to the plaintiffs and (as required by their lease) to fence in the land, the effect being to exclude the plaintiffs from access across the closes to the railway. The plaintiffs brought an action to restrain the obstruction, alleging that the defendants' further lines were unnecessary, and that the defendants were exercising their power mal^ fide and unreasonably : — Held, by analogy to the principle governing cases of purchase under compulsory powers, that, as the defendants were exercising a legal power, the onus of proving mala fides was on the plaintiffs, and that even if further accommodation was not at present necessary, the defendants were entitled to look forward to the time when it might become so. James v. Lovel, 56 L. T. 739 ; 35 W. R. 626— Kekewioh, J. Agreement to serve as Manager in Business.] — Where in breach of an agreement by the de- fendant to serve the plaintiff for fourteen years as manager of his business (which agreement contained no express negative covenants), the defendant left the plaintiff, and started a similar business a few doors off : — Held, that the court had power to grant an injunction, but that the power was discretionary, and the case was not one for its exercise. Jackson v. Astley, 1 C. & E. 181 — Pollock, B. See also cases sub tit. CON- TBACT, III. 3, g. To Evicted Tenant to Remove Timber.] — In- junction granted ordering defendant to remove logs of timber left by him on premises of which he had agreed to give up possession at the end of his lease, and from which he was evicted by a writ of possession. Guinness v. Fitzsimons, 13 L. E., Ir. 71— M. K. Farming Agreement — Agreement to keep Farm Properly Stocked. ] — An injunction will not be granted to restrain a threatened breach by a tenant of a stipulation in a farming agreement requiring him to keep on the farm a proper and sufficient stock of sheep, horses, and cattle. PUpps V. Jachson, 56 L. J., Ch. 550 ; 33 W. E. 378— Stirling, J. Stage Carriage — Use of Manager's name.] — The plaintiff, as manager of an omnibus com- pany, became, under the provisions of the statutes and rules for the regulation of metro- politan stage-carriages, the licensee of their vehicles. Having ceased to be such manager : — Held, that he was entitled to an injunction to restrain the company from continuing to use his name upon the number plates affixed to their carriages. Hodges v. London Tramways Omni- bus Company, 12 Q. B. D. 105 ; 50 L. T. 262 ; 32 W. E. 616— D. 991 INJUNCTION. 992 Assuming Business Name — Damnum absque injuria.] — The short address " Street, London," was used for many years in sending telegrams from abroad to Street & Co., of Cornhill. A bank adopted by arrangement with the Post- office the phrase " Street, London," as a cypher address for telegrams from abroad to themselves : — Held, that the court had no jurisdiction to gi-ant an injunction restraining the bank from using such address, as there was no attempt to interfere with trade, no legal injury done, but simply a matter of inconvenience. Street v. Union Banli of Spain and England, 30 Ch. D. 156 ; 55 L. J., Ch. 31 ; 53 L. T. 262 ; 33 W. E. 901— Pearson. J. Public Lecture — Notes taken by Shorthand Writer — Publication in Shorthand Characters.] — Where a lecture is delivered to an audience admitted by ticket without payment, there is an implied contract on their part not to publish such lecture for purposes of profit. NicoU v. Pitman, 26 Oh. D. 374 ; 53 L. J., Ch. 552 ; 50 L. T. 254 ; 32 W. B. 631— Kay, J. The plaintiff delivered a lecture at a working men's college to an audience who were admitted gratuitously by tickets issued by the committee of the college. The plaintiff had committed the lecture to writing, but delivered it from memory. The defendant, a shorthand writer, attended the lecture, took it down nearly verbatim, and subse- quently published his notes in shorthand cha- racters in a periodical brought out and sold by him for the instruction of learners for the art of shorthand writing : — Held, that the plaintiff was entitled to an injunction to restrain the defendant from so publishing the lecture. Ih. See also Caird v. Sime, 12 App. Cas. 326 ; 57 L. J., P. C. 2 ; 57 L. T. 634 ; 36 W. E. 199— H. L. (Sc). Letters Addressed to Agent at Principal's OfSce — Compelling Agent to rescind Order to Post-Office.] — B. was employed to manage one of L.'s branch offices for the sale of machines, and resided on the premises. He was dismissed by L., and on leaving gave the postmaster direc- tions to forward to his private residence all letters addressed to him at L.'s branch office. He admitted that among the letters so forwarded to him were two which related to L.'s business, and that he did not hand them to L., but returned them to the senders. L. brought an action to restrain B. from giving notice to the post-office to forward to B.'s residence letters addressed to him at L.'s office, and also asking that he might be ordered to withdraw the notice already given to the post-office : — Held, that the defendant had no right to give a notice to the post-office, the effect of which would be to hand over to him letters of which it was probable that the greater part related only to L.'s business ; and that the case was one in which a mandatory injunction compelling the defendant to withdraw his notice could properly be made, the plaintiff being put under an undertaking only to open the letters at certain specified times, with liberty for the defendant to be present at the opening. Her- mann Loog V. Bean, 26 Ch. D. 306 ; 53 L. J., Ch. 1128 ; 51 L. T. 442 ; 32 W. E. 994 ; 48 J. P., 708— C. A. Marine Insurance — Unseaworthiness of Ship — Action on Policy.] — In an action by under- writers for an injunction to restrain policy- holders from taking any proceedings with reference to a policy of insurance, on the ground that the underwriters had an admittedly good defence to any action that might be brought on such policy : — Held, that an injunction ought not to be granted. Brooking v. MoMdslay, 38 Ch. D. 686 ; 57 L. J., Ch. 1001 ; 58 L. T. 862 ; 36 W. E. 664 ; 6 Asp. M. C. 296— Stirling, J. To Prevent Person from Permitting Nuisance beyond his Control.] — I think it would be wrong to enjoin a company or an individual from per- mitting that to be done which is really beyond his control — not beyond his control in this sense, that there is a vis major or an act of God para- mount — ^but beyond his control in the sense that he cannot by any precaution or by any works with reasonable certainty prevent that happen, ing which all contemplate as likely to happen. Evans V. Manchester, Sheffield, and Lincolnshire Railway, 36 Ch. D. 639 ; 57 L. J., Ch. 159 ;-67 L. T. 198 ; 36 W. E. 331— Per Kekevrich, J. Publication of Slander or Libel.] — See Defa- mation. Breach of Covenants in Leases.] — See Land- LOED and Tenant. Infringement of Copyright.] — See Copteight. Threats of Infringement of Patent.] — See Patent. Imitation of Goods.] — See Tkade. Sisturbance of Market.] — See Mabket. Apprehended Injury.] — See NtriSANCB. Nuisances.] — See Nuisance. Corporation changing name of Streets.] — See Health. Conspiracy to molest in Trade.] — See Tbadk. TTser of Trade Mark or Trade Name.] — See Trade. Publication of Letters.] — See Letters. To Prohibit Meetings of Shareholders.]— jSsc Company. Bestraining Proceedings on Winding-up of Companies.] — See Company. Eostrainiug Railway from Bnnning Trains while Purchase-Money Unpaid.] — See Bailwat. INJURY. Set NEGLIGENCE. 993 INNKEEPER— INSURANCE. 994 INLAND REVENUE. See EEVENUB. INNKEEPER. Liability for Negligence — Person of Guest.] — The general duty of an innkeeper to take proper care for the safety of his guests does not extend to every room in his house at all hours of night or day, but must be limited to those places into which guests may be reasonably supposed to be likely to go, in a reasonable belief that they are entitled or invited to do so. Walker v. Midland Railway, 55 L. T. 489 ; 51 J. P. 116— H. L. (E.) Property of Guest — Temporary Befresh- ment.] — The plaintiEE arrived at Carlisle with the intention of spending the night at the defendant's hotel, which adjoined the railway station. He delivered his luggage to one of the porters of the hotel, but, after reading a telegram which was waiting for him, decided not to spend the night at Carlisle, and went into the cofEee- room to order some refreshments. He was not able to obtain in the coffee-room exactly what he required, and went into the station refreshment- room, which was under the same management as the hotel, and connected with it by a covered passage. Shortly afterwards he went out, telling the porter to lock up his luggage, and it was locked up in a room near the refreshment-room. On his return he found that part of it was miss- ing : — Held, that at the time of the loss of the plaintifE 's goods there was no evidence of the relation of landlord and guest between him and the defendants, so as to make them responsible. Strauss v. County Hotel and Wine Covvpany, 12 Q. B. D. 27 ; 53 L. J., Q. B. 25 ; 49 L. T. 601 ; 32 W. R. 170 ; 48 J. P. 69— D. licences.] — See Intoxicatins Liquoeb. INNUENDO. See DEFAMATION. INQUEST. See COEONEK. INQUISITION. To assess Compensation for Taking Lands. ]- See Lands Clauses Act. Coroners.] — See Coeonkb. Of Lunacy.] — See Lunatic. INSANITY. See LUKATIC. INSOLVENCY. See BANKRUPTCY. INSPECTION. Of Documents.] — See Discoveey. Of Property.]— &e Peacticb. INSURANCE. 1. Life and Accident. 1. The Contraet — Conditions, 994. 2. Assignment of Policies, 998. 3. Premivms, 999. 4. Interest of Assured, 1001. 5. Midence, S;c., of Death, 1003. 6. lAfe Insurance Companies, 1003. II. FlEB, 1005. III. Maeinb. 1. Interest of Assured, 1009. 2. Duration of Rish, 1010. 3. Nature of Rish, 1012. 4. Concealment of Facts, 1013. 5. Warranties, 1014. 6. Losses, 1016. 7. Actions on Policy, 1018, 8. Mutual Insurance Associations, 1019. I, LIFE AND ACCIDENT. 1. The Contbact — Conditions, Form of Proposal—" Residence."] — In a form of proposal to an assurance office for a policy of life insurance, the residence of the proposer was stated to be "191, Great Ancots- street, Manchester." The proposer was at the time temporarily staying at the address given, K K 995 INSUEANCE— Li/e and Accident. 996 and really resided in Ireland, whither he returned three months afterwards. The proposer agreed that, if anything contrary to the truth were stated in the proposal, the policy to be granted in pursuance thereof should be absolutely void : — Held, in an action on a policy issued in accord- ance with the proposal, that the declaration of the assured as to residence was not, according to the true construction of the word in the form of proposal, untrue so as to render the policy void. Grogan v. London and Manchester Indiistrial Assurance Co., 53 L. T. 761 ; 50 J. P. 134— D. Proposal and Acceptance — Uaterial Alteration of Bisk before Tender of Premium.] — A proposal was made to an insurance company for an in- surance on the life of the proposer, who made, on a form issued by the company, statements as to his state of health and other matters, and a declaration that the statements were true, and were to be taken as the basis of the contract. The proposal was accepted at a specified premium, but upon the terms that no insurance should take effect till the premium was paid. Before tender of the premium there was a material alteration in the state of the health of the proposer, and the company refused to accept the premium or to issue a policy : — Held, that the nature of the risk having been altered at the time of the tender of the premium, there was no contract binding the company to issue a policy. Canning V. Farquhar, 16 Q. B. D. 727 ; 55 L J., Q. B. 225 ; 64 L. T. 350 ; 34 W. R. 423— C. A. Quaere, whether, if there had been no altera- tion in the risk, the company would have been legally entitled to refuse to accept the premium, and to issue a policy. lb. Express Warranty of Truth of Answers — "Strictly Temperate."]— A. applied to an in- surance office to effect a policy on his life. He received a printed form of proposal containing questions. Among these was the following : Question 7 (a). Are you temperate in your habits ? (b) and have you always been strictly so ? A. answered, (a) " Temperate ;" (b) " Yes." Subjoined to the printed questions was a decla- ration, which A. signed, to the effect that the foregoing statements were true, and that the assured agreed that this declaration should be the basis of the contract, and that if any untrue averment, &c. was made the policy was to be absolutely void, and all moneys received as premium forfeited. The policy recited the above declaration as the basis of the contract. After A.'s decease the insurance company refused pay- ment of the policy on the ground that the above- mentioned answer was false in fact. In an action on the policy :— Held, that the declaration of A., taken in connexion with the policy, constituted an express warranty that the answer to Question 7 was true in fact ; and as the evidence clearly proved that A.'s averment as to his temperance was untrue, the policy was absolutely null and void. Thomson v. Weems, 9 App. Cas. 671 — H. L. (Sc). Beference to Foreign Law— Effect of.] — A reference to foreign law in an English contract does not incorporate the foreign law, but merely affects the interpretation of the contract. Dever, ^ Esc parte, Suse, In re, 18 Q. B. D. 660 ; 56 L. J., Q. B. 552— 0. A. I Conditions Precedent binding on Bepresenta- tive.] — ^A policy of assurance against injury and death by accident after reciting that A., therein- after called the assured, was desirous of effect- ing an assurance, witnessed that the insurers accepted the risk, subject nevertheless to the several provisions thereinafter contained, and to the conditions and stipulations indorsed there- on which were to be conditions precedent to the right of the assured to sue or recover there- under : — Held, that the conditions were condi- tions precedent to the right not only of the assured but of his legal personal representatives, to recover thereunder. Cawley v. National Mm- ployers' Assurance Association, 1 C. & B. 597 — A. L. Smith, J. Conditions — Death accelerated by Disease or Infirmity.] — One of the conditions provided that no claim should be made under the policy in respect of any injury, unless the same should be occasioned directly or solely by external or material causes visibly operating upon the person of the assured, whereof proof satisfactory to the insurers should be f umisned, and that the policy did not insure against death, &c., accele- rated or promoted by any disease or bodily in- firmity, or any natural cause arising within the system of the assured, whether accelerated by accident or not. A. met with an accident, upon which death ensued, but death would not have ensued had he not at the time of the accident been suffering from gall-stones : — Held, that the insurers were not liable. li. "Within the United Kingdom."]— A policy of insurance covered death caused by accident happening within the United Kingdom. The assured was accidentally drowned in Jersey. In an action on the policy : — Held, that the accident happened within the United Kingdom. Stoneham v. Ocean, Railway, and General Ac- cident Insurance Company, 19 Q. B. D. 237; 57 L. T. 236 ; 35 W. E. 716 ; 51 J. P. 422— D. Notice of Accident within Seven Days— Omission to give.] — A policy was made subject to a condition that in case of fatal accident notice thereof must be given to the insurera within seven days. It was impossible to give notice within the seven days : — Held, that notice was not a condition precedent to the right to recover. lb. Notice of Death — Medical Beport— In- stantaneous Death.] — A policy of insurance against accident was made subject to the condi- tion inter alia that in the event of any accident to the assured he, or his representatives, should give notice thereof in writing to the company within ten days after its occurrence, stating the number of the policy, nature and date of the injuries, place where, and manner in which they were received, extent of disablement, and name, address, and occupation of the person injured, and also within fourteen days of the accident, forward to the head office a written report from the assured's medical attendant, who should be a duly qualified and registered medical prac- titioner, of the facts of the case, and nature and ' extent of the injuries received and the condition, provided, that unless it were complied with, as to time and otherwise (time being of the essence of the contract) no person should be entitled to 997 INSURANCE— Li/e and Accident. 998 claim under the contract : — Held, that the omis- sion to give notice of death -within the prescribed time, even when death was instantaneously caused by an accident, was an answer to a claim made upon the policy. Gamhle v. Accident Asswance Co. (Ir. R., 4 C. L. 204) followed. Patton v. Employers' Liability Assurance Co., 20 L. K., Ir. 93— C. P. D. Held, also, that it was not necessary that the notice should be given by the legal personal re- presentatives of the assured, but might be effec- tually given by any person appointed by the assured for the purpose, or (per Murphy, J.) by any person acting on behalf of the persons inte- rested in the policy. li. Held, also, that any excuse for not forwarding the medical report as, e. g., that there was no one in medical attendance on the assured, should be specially pleaded and proved, when the company rely on the condition. Ih. Against Assignment.]- re, infra. -See Turcan, In Saicide Clause— AsaignmentJ —&e City Bank v. Sovereign Life Assurance Co., post, col. 999. Bailway Passengers' Assurance Company — Arbitratiaii — Stay of Proceedings.] — Sects. 3 and 16 of the Railway Passengers' Assurance Com- pany's Act, 1864, provide that questions of differences arising shall, if either the company or the persons claiming require it, be referred to arbitration. By s. 33, where an action has been commenced, the court or a judge, " upon being satisfied that no sufficient reason exists why the matters cannot and ought not to be referred to arbitration, and that the company were at the time of the bringing of the action or suit, and still are, ready and willing to concur in all acts necessary and proper for causing the matters to be decided by arbitration, may make an order staying all proceedings in the action." A claim was made against the company, which they dis- puted, but they did not give notice before the commencement of the action that they required to have the question referred to arbitration. After an action had been commenced the com- pany took out a summons to stay all proceedings in the action : — Held, that as the company had not given notice before the commencement of the action that they required to have the question referred to arbitration, ss. 3 and 16 did not apply, and that, under the circumstances of the case, the court were not satisfied that no suflScient reason existed why the matters could not or ought not to be referred to arbitration, or that the company were at the beginning of the action ready and willing to concur in all acts necessary and proper for causing the matters to be decided by arbitration, and therefore no order ought to be made under s. 33. Fox v. Railway Passengers' AssuroMce Company, 52 L. T. 672 — C.A. Benefit Society — Death of Member intestate — Payment of Death Allowance by Committee — Bight of Administrator to recover from Payee.] — The deceased, a member of an unregistered friendly society, had, upon making his applica- tion for admission to the society, signed a declara- tion agreeing to be bound by the rules of the society, and authorizing the deduction from his wages of the sum specified in the rules for securing to himself, or to his representatives in case of his death, the benefits of the society. The rule relating to the payment of death allow- ances empowered and authorized the committee to pay the allowance to such person or persons as in their discretion they might think fit ; and it further provided that the allowance should be paid to certain specified relatives in such proportions as the committee should determine, unless otherwise bequeathed by will, when it was to be paid to the person to whom it had been bequeathed ; that, where there were no. surviving relatives and no special bequest, only the funeral expenses should be defrayed by the society, and that where the allowance had been once paid neither the committee nor the society should be liable to any further claim in respect of it. Upon the death of the member intestate the society paid the amount of the death allow- ance to the defendant, his sister. The plaintiff, as administrator of the deceased, having brought an action against the defendant to recover the money so .paid to her : — Held, that the rule constituted the contract between the member and the society as to the payment of the money ; that the death allowance was not the property of the member during his life, and in the absence of a bequest by will was not assets for the payment of his debts, and that therefore the plaintiff could not recover. Ashhy v. Costin, 21 Q. B. D. 401 ; 57 L. J., Q. B. 491 ; 59 L. T. 224 ; 37 W. R. 140 ; 53 J. P. 69— D. 2. Assignment op Policies. Condition against Assignment — Beneficial Interest.] — A policy was subject to a condition that it should " not be assignable in any case whatever," and there was a separate proviso that the insurance company should not be bound to recognize any equitable dealings with the policy : — Held, that the effect of the condition against assignment was merely to make the policy which was subject to it non-assignable at law as it would have been prior to the Policies of Assurance Act, 1867, and did not prevent a policy-holder dealing with the beneficial interest in it (e.g., by a declaration of trust), or a court of equity fi'om enforcing such a transaction. Turcan, In re, 40 Ch. D. 5 ; 58 L. J., Ch. 101 ; 59 L. T. 712 ; 37 W. R. 70— C. A. Assig^nment of Policy Abroad — Lex loci.] — The plaintiff sued the trustees of an English life assurance company as assignee from her husband of a policy of life insurance granted by the com- pany. The assignment to the plaintiff was made in Cape Colony, the assignor being then domiciled in that colony, where he remained till his death. By the law of Cape Colony, such an assignment was void by reason of the alleged assignee being the wife of the assignor : — Held, that the law of Cape Colony applied to the assignment of the policy, and therefore that the defendants were entitled to judgment. Lee v. Abdy, 17 Q. B. D. 309 ; 55 L. T. 297 ; 34 W. R. 653- D. Notice to Company — Effect of.]— The pro- visions of 30 & 31 Vict. c. 144, s. 3, to the effect that on the assignment of a policy of insurance a prescribed notice shall be given, and the date on which such notice shall be received shall regulate the priority of all claims under K K 2 899 INSURANCE— Lt/« and Accident. 1000 the assignment, relate only to the liabilities of the insurance oflSce to the assignees, and not to the rights inter se of persons claiming to be interested in the policy moneys. Newman v. Neman, 28 Ch, D. 674 ; 54 L. J., Oh. 598 ; 52 L. T. 422 ; 33 W. R. 505— North, J. Assignee for Value — Suicide Clause — Collateral Security — Marshalling of Securities.] — A policy of assurance contained a condition that, if the assured should die by his own hand the policy should become Toid, and all moneys paid in respect thereof should be forfeited to the com- pany. But in case the beneficial interest in the policy had been vested in any other person for a valuable and pecuniary consideration, the policy should remain valid to the extent of the interest of such person, subject to a specified notice in writing having been given of the transaction transferring the interest. The assured deposited the policy with the plaintiiis to secure a debt owing from his firm and further advances, the deposit being accompanied by a memorandum stating that the policy was deposited by way of equitable mortgage as collateral security. The required notice was given to the assurance com- pany, and S. subsequently committed suicide, the plaintiffs holding at the time nf his death other securities for the debt besides the policy : — Held, that the suicide clause was undistinguishable from that which was under decision in Solicitors' and General Life Asturan.ce Company v, Lainb (10 L. T. 160, 702), and that the plaintiffs were entitled to be paid out of the policy moneys the amount of the debt due to them at the date of the death of S. Held, further, that notwith- standing that the estate of the assured might thereby be benefited, tlie assurance company were not entitled to have the debt paid, either primarily or rateably, out of the other securities held by the plaintifis. City Banlt v. Sovereign, Life Assurance Company, 50 L. T. 565 ; 32 W. E. 658 — Pearson, J. 3. Premiums. Payment by Person not sole Beneficial Owner — Lien — Salvage.]— E. mortgaged a policy of life assurance to F., and afterwards filed a petition for liquidation, llesolutions of the creditors were passed, under which E.'s friends were to pay 2s. in the pound on the unsecured debts, and the trustee was to assign to a nominee of the friends all E.'s property except the equities of redemption in Ihe securities held by secured creditors. The terms of these resolutions were carried out, and E. obtained his discharge. Shortly after this, in 1883, E. agreed with D., who professed to be F.'s ajen*-, for the purchase of P.'s interest in the policy, but no such pur- chase was ever carried out. Shortly after this agreement D. informed E. that none of the incumbrancers would pay the premium for that year, and E. paid it on the faith, as he de- posed, of his interest under the agreement. There was no evidence that D. had any authority to enter into any agreement on behalf of F., or that P. had any knowledge of the contract, or of the payment by B. F."s representative, Mrs. F., brought an action to enforce her security, and the policy was sold for much less than the amount of the mortgajie debt : — Held, that E. was entitled to be repaid out of the proceeds of sale the premiums for 1883 which he had paid, and that the residue must be paid to Mrs, P. But held, on appeal, that E.'s payment of a premium in his character of owner of the equity of redemption could not give him a lien in priority to the mortgage debt ; that E.'s belief that he had a valid contract for purchase, when he had not, could not give him any advantage as regarded the premium, there being nothing to show that F. knew of the alleged contract or of the payment of the premium ; that, in the state of the evidence no request from F. to pay the premium could be inferred, and no equity could be held to have arisen against F. on the ground of acquiescence or lying by ; and that the fact that the policy had been preserved by E.'s pay- ment did not give him a right to have the pre- mium repaid nor give him a lien on the policy for it ; and that therefore, the whole proceeds of sale must be paid to Mrs. F. without deducting the premium. Semble, the maritime doctrine of salvage has no application to the payment of premiums on a policy. West v. Beid (2 Hare, 249) ; Burridge v. Bow (1 Y. & C. Ch. 183) ; Shearman v. British Empire Mutual Life As- surance Company (14 L. E., Eq. 4) ; Gill v. Downing (17 L. E., Eq. 316) ; and Aylwin v. Witty (30 L. J., Ch. 860), considered. FaXche V. Scottish Imperial Iiisurance Compa/im, 34 Oh. D. 234 ; 56 L. J., Ch. 707 ; 56 L. T. 220 ; 35 W.E. 143— G.A. Under the provisions of a private estate act the trustee of a term of years in certain settled estates of which W. had been tenant for life, was bound to apply the rents of the estates, first, in the payment from time to time of the interest upon certain incumbrances existing before the passing of the act, and subject thereto in the payment from time to time of the interest on sums to be raised by W. by mortgages created under the powers conferred by the act, and of the premiums on policies of life assurance, con- stituting the collateral security for the repay- ment of those sums, the equity of redemption being reserved to W. The rents having become insufficient, the trustee, in order to save one of the policies from lapsing, paid a premium out of his own moneys. He did this without any re- quest from the mortgagee or from the owner of the equity of redemption of the policy. The life insured having dropped, and the proceeds of the policy having been received by the mort- gagee : — Held, that the trustee was not entitled to any lien on the proceeds in respect of the premiums which he had paid, he not being a trustee of the policy. WinchUsea (Earl) Policy Trusts, In re, 39 Ch. D. 168 ; 58 L. J., Ch. 20 ; 59 L. T. 167 ; 37 W. E. 77— North, J. Sight to Bepayment — Purchase of Beversion. set aside.] — The purchaser of a contingent rever- sionary interest insured the life of the vendor and paid premiums for some years. . The sale was subsequently set aside as an unconscionable bargain : — Held, that the purchaser was not entitled to repayment of the premiums. Fry v. LaTie, 40 Ch. D. 312 ; 58 L. J., Ch. 113 ; 60 L. T. 12; 37W. E. 135— Kay,J. Commission — Mortgagor and Mortgagee.]— The plaintiflE mortgaged her life interest in a fund to the defendants, it being part of the agreement that a policy should be effected on her life, and the premiums be secured on the 1001 INSUEANCE— Li/e and Accident. 1002 mortgaged property. In an action for redemp- tion the chief clerk found that 173Z. 19*. Id., •" premiums paid on policies," was due from the plaintiff to the defendants. L., a solicitor and agent to all the parties, paid the premiums to the insurance offices, receiving from them 5 per cent, commission. On summons to vary the chief clerk's certificate by the amount of the commission, on the ground that the " premiums paid on policies " only amounted to 165Z. 5s. : — Held, that after the premiums had been paid to the insurance offices, the mortgagor had no interest in them. The insurance offices received the premiums, and paid the commission out of them to their own agent. Zeete v. Wallace, 58 L. T. 577— Kay, J. Covenant to Pay — Bankruptcy — Proof — Value.] — Where, in an arrangement matter, a creditor held policies of insurance which the arranging debtor had covenanted to keep up : — Held, that the value of the creditor's interest in the covenant was the sum which the insurance company would accept as a present payment, by way of commutation of the annual premiums, to keep the policies subsisting. Hank of Ireland, Ex parte, S., In re, 17 L. E., It. 507— Bk. Beturn of— Wagering Policy.] — See next case. i. Interest of Assured. Wagering Policies — Betum of Premiums.] — J. H. effected with the defendant company two policies of insurance on the life of his father, j. H., in which he had no insurable interest. According to the policies the premiums were to be paid weekly. J. H., the son, continued to make these weekly payments for some years. J. H., the father, had at first no knowledge of the insurances effected on his life ; but when he became aware of them he objected to their being continued, and gave notice to that effect to the company. J. H., the son, then gave notice to the defendants that the policies were at an end, and claimed the return of the amount •of the premiums. The defendants refused to pay, and J. H., the son, brought his action for their recovery, and the county court judge gave judgment for the plaintiff : — Held, that under the circumstances of the case the policies were wagering policies, and consequently the pre- miums paid in respect of them could not be recovered. Howard v. Refuge Friendly Sooiety, 5i L. T. 644— D. Benefit of Wife and Children — Appointment of Trustees.] — A petition (presented since the coming into operation of the Married Women's Property Act, 1882), for the appointment of trustees of the proceeds of a life policy effected by a husband, under the provisions of the Married Women's Property Act, 1870, for the benefit of his wife and children, ought to be ■entitled in the matter of the act of 1882. Soutar's Policy Trust, In re, 26 Ch. D. 236 ; 54 L. J., Ch. 256 ; 32 W. E. 701— Pearson, J. • Appointment of Trustees — Direction to Trustee to exchange Policy.] — The defendant effected a policy on his life for the benefit of his wife and children under s. 10 of the Married Women's Property Act, 1870. He became bankrupt and mentally deranged, and was unable to pay the premiums. By the rules of the insurance society the policy could be ex- changed for a fully paid-up policy of smaller value, and thus preserved from lapsing. The wife and only child of the defendant brought this action, claiming the appointment of a trustee of the policy, and that such trustee might be authorised to exchange the policy for one fully paid up :— Held, that the court under its general jurisdiction had power to appoint two trustees ; and j udgment was given to that effect, and otherwise as claimed. Sohultze v. Sclmltze, 56 L. J., Ch. 356 ; 56 L. T. 231— Stirling, J. Joint Tenancy.] — A married man insured his life under a policy which, after reciting that he was desirous of assuring his life under the pro- visions of the Married Women's Property Act, 1870, for the benefit of his wife and children, stated that his wife and children, and failing them, his heirs, administrators, or assigns, would be entitled after his death to the policy money : — Held, that the wife and children took the policy money as joint tenants. Ada/in's Policy Trusts, In re (23 Ch. D. 525), not followed. Soyton, In re, Seyton v. Satterthwaite, 34 Ch. D. 511 ; 56 L. J., Ch. 775 ; 56 L. T. 479 ; 5 W. R. 373— North, J. Policy in Wife's Name — Voluntary Settlement of — Payment of Premiums.] — On 5th November, 1844, a policy of insurance for 2,O0OZ. was effected upon the life and in the name of B., the wife of A. By a post-nuptial settlement dated 27th November, 1844, reciting that B. was desirous of making provision for her husband and children, and that A. had agreed to join in the deed for the purpose of assuring "all his interest, if any," in the policy, A. and B. assigned to C. and D. the policy and all sums payable there- under upon trust to invest the same and pay the income to A. and his assigns during his life and after his decease to divide the trust funds equally among the children of A. and B. The settle- ment contained no power of revocation. A, pre- deceased his wife, having paid all premiums during his lifetime. Upon the death of B., the question arose whether the policy moneys were subject to the trusts declared by the settlement : — -Held, that the policy was intended by the husband to be and was the separate property of the wife at the date of settlement, in which the husband concurred only for conformity and to bind such interest, if any, as he had ; that the settlement was valid and that the policy moneys were bound by the trusts of the settlement. Winn, In re. Reed v. Winn, 57 L. T. 382— Kay, J. Contingent Interest — Possibility— Interest for Benefit of Wife.] — A policy of insurance on the life of a husband for the benefit of his wife was, in 1876, effected with an insurance company which carried on business at New York, through their branch office in London. The application for the policy was made by him on behalf of his wife. The premiums were made payable in London. By the policy the company promised to pay the amount assured to the wife for her sole use, if living, and, if she were not living, to the children of the husband, or, if there should be no such children, to the executors or assigns of the husband, at the London office. The policy also provided that, on the completion of a period of ten years from its issue, provided 1003 INSUKANCE— Li/e and Accident. 1004 it should not have been previously terminated by lapse or death, the legal owner should have the option of withdrawing the accumulated reserve and surplus appropriated by the com- pany to the policy. The husband paid the premiums until July, 1883, when he filed a liquidation petition under the Bankruptcy Act, 1869. In 1884 he obtained his discharge. After 1883 the wife paid the premiums out of her separate estate. In 1866 the wife exercised the right of withdrawal, and the company paid 2,9597. in respect of the policy : — Held, that, even if the sum thus paid did not by virtue of the policy belong to the wife for her separate use, the husband's contingent interest in it at the time when he obtained his discharge was a mere possibility, and that, consequently, it did not pass to the trustee in the liquidation. Dever, Ex parte, Suse, In re, 18 Q. B. D. 660 ; 56 L. J., Q. B. 552— C. A. 5. EVIDKNCB, ETC., OF DEATH. Evidence of Death — Cestui que vie. j— Money was payable to a tenant pur autre vie under a policy, after proof, to the satisfaction of directors, of the cestui que vie. An order was made under 6 Anne, u. 72, that the cestui que vie ought to be deemed and taken to be dead under the statute, and the remainderman entered : — Held, that the directors might reasonably require further evi- dence of the death of the cestui que vie. Boyle V. City of Glasgow Life Assurance Company, 53 L. J., Ch. 527 ; 50 L. T. 323 ; 32 W. E. 476 ; 48 J. P. 374— North, J. Presumption of Death.]— &« Evidence, II. Notice to Insurance Company.] — Where the estate of a person whose death the court were asked to presume consisted in part of a policy of assurance on his life, the court ordered that notice of the application should be given to the insurance company. Barter, In Goods of, 11 P. D. 78 ; 56 L. T. 894 ; 35 W. E. 80— Butt, J. 6. Life Insurance Companies. Income Tax — "Profits and Gains" — Bonuses to Participating Policy-holders.] — A life in- surance company issued " participating policies," according to the terms of which any surplus which existed at the end of each quinquennial period in the hands of the company, after pay- ment of policies falling due during such period, and provision for outstanding liabilities, was dealt with as follows : two-thirds of the surplus went to the policy-holders, who received payment thereof either by way of bonus or abatement of premiums ; the remaining third of the surplus went to the company, who bore the whole expenses of the business, the portion remaining after payment of expenses constituting the only profit available for division : — Held (by Lords Blackburn and Fitzgerald, Lord Bramwell diss.), that the two-thirds returned to the policy-holders were " annual . profits or gains " and assessable to income tax. Last v. London Assurance Corporation, 10 App. Gas. 438 ; 55 L. J., Q. B. 92 ; 53 L. T. 634 ; 34 W. K. 233 ; .50 J. P. 116— H.L. (E.). Where a life insurance company carrying on business in New York and Great Britain issued participating policies as well as non- participating policies in Great Britain to members of the company, and remitted the net amount received to New York : — Held, that the premium income derived from participating as well as non-participating policies was a " profit or gain " liable to be assessed to income tax. Last v. London Assurance Corporation (10 App. Gas. 438) followed. Styles v. New York Life Insurance Company, 51 J. P. 487 — D. "Profits and Gains" — Interest arising' from Investments.] — The amount of interest arising from investments made by an insurance company for the purpose of carrying on their business on which income tax had been deducted at its source amounted to more than the profits of the company for the year of assessment, but the company had during the year received interest from investments on which income tax had not been deducted at its source : — Held, that under s. 102 of the Income Tax Act, 1842 (5 & 6 Vict, c. 35), and sched. D. of s. 2 of the Income Tax Act, 1853 (16 & 17 Vict. c. 34), the company were liable to pay income tax on the interest from which income tax had not been deducted at its source. Last v. London Asswance Corporation (10 App. Gas. 438) considered. Clerical, Medical, and General lAfe Assurance Society v. Carter, 21 Q. B. D. 339 ; 57 L. J., Q. B. 614 ; 59 L. T. 827 ; 37 W. R. 124— D. Aflfirmed 22 Q. B. D. 444 ; 58 L. J., Q. B. 224 ; 37 W. E. 346 ; 53 J. P. 276— G. A. Deposit of Fund in Court — Payment out.] — Where a petition is presented under the Life Assurance Gompanies Acts, 1870, 1871, and 1872, for payment out of Court to the company of the statutory deposit of 2O,O00Z., the petition must contain a statement of rule 6 of the Board of Trade Rules, 1872, which provides for payment out of the deposit money so soon as it is proved to the satisfaction of the court that the hfe assurance fund of the company, in respect of which the deposit was made, amounts to the sum of 40,0002. Le PUniic, In re, 58 L. T. 512 — Chitty, J. Deed of Settlement — Power to alter— Sale of Business.] — The deed of settlement of an unin- corporated life assurance company contained no provision for the sale or transfer of its business. But it provided that the proprietors might alter, amend or repeal the laws, regulations and pro- visions of the company. Resolutions were passed with due formalities to take power to sell and transfer the business : — Held, that a sale and transfer of the business was intra vires. Argus Life Assurance Company, In re, 39 Ch. D. 571 ; 58 L. J., Gh. 166 ; 59 L. T. 689 ; 37 W. R. 215— North, J. Transfer of Business— Confirmation by Court- Time for sending Notice.] — When a petition is presented by a life assurance company under the Life Assurance Companies Act, 1870, for the confirmation of a conditional agreement to transfer its business to another company, s. 14 of the act will have been sufficiently complied with if all the notices (required by that section to be given to each policy-holder of the trans- ferred company) are given before the hearing (though some of them may have been given after the presentation) of the petition. Briton lAfe Association. In re, 56 L. J., Gh. 988 ; 35 W. R. 803— North, J. 1005 INSURANCE— i?'tre. 1006 Winding up — Scheme for Bednction of Con- tracts.] — On a petition for winding up an insolvent life assurance company, it was sug- gested that there should be an order for the re- duction of the amount of the contracts of the company under b. 22 of the Life Assurance Companies Act, 1870, instead of a winding- up order. The matter was referred to chambers, so that steps might be taken, by hold- ing meetings or otherwise, to ascertain what course ought to be adopted, and the petition directed to stand over generally for the meetings to be held, the meetings of the policy-holders and shareholders to be separate. Bnton Medical and General Life Assurance Company, In re, 54 L. T. 14— Kay, J. 11. FIRE. Payment of Premium — Bisk when Commenc- ing.] — In a poUoy of fire insurance, in the absence of a provision that the policy is not to attach until payment of the premium, such a provision will not be implied. Kelly v. London and Staffordshire Fire Inmrance Compawy, 1 C. & E. 47— Mathew, J. Agent to Beceive.J — A policy contained the following clause:—" It is part of this contract that any person other than the assured who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured and not of this company, under any cir- cumstances whatever, or in any transaction relating to this insurance." A broker who effected the insurance for the assured, and received the premium, had frequently effected other insurances with the company, deducting his commission from the premiums and handing over the balance : — Held, that he was the agent of the company to receive the premium. III. Specific Appropriation.] — Where the plaintiffs being agents for an insurance office remitted to it lOOZ. " for premiums," and it appeared that the lOOZ. was to the knowledge of the office in excess of what they owed as agents, and that the terms on which certain lapsed policies should be renewed by the office for their benefit had been ascertained by consent: — Held, that although there was not in the office any specific appropriation of any part of the lOOZ. to the payment of the premiums on the lapsed policies, yet that it must be taken to have been re- ceived on account thereof, and that from the date of receipt there was a good contract for the renewal of the old insurance. Kirhpatricli v. South Australian Insurance Co., 11 App. Cas. 177— P. C. Option to Beinstate or Beplace Property Damaged or Destroyed.] — A condition in a policy of insurance against fire that, " the company may, if it think fit, reinstate or replace property damaged or destroyed instead of paying the amount of the loss or damage," entitles the com- pany to exercise an option, and in the event of the property insured being wholly destroyed, to reinstate it by other property which is equivalent to that which has been destroyed ; or in the event of the property insured being damaged but not destroyed, to reinstate it — that is, to repair and put it, not in the exact place, but in the same state in which it was before the fire occurred, instead of paying the amount of the loss or damage. Anderson v. Comineroial Union Assurance Co., 55 L. J., Q. B. 146 ! 34 W. E. 189 — C. A. Latent Ambiguity in PoUoy — Evidence — Question for Jury.] — In an action upon a policy of fire insurance, if the evidence discloses a latent ambiguity in the policy so that it becomes necessary to go into the consideration of other ddcuments, and to resort to parol evidence to solve that ambiguity, it ceases to be merely a question for the court on the construction of the instrument, and raises a question of fact which must be determined by the jury. Hordern v. Commercial Union Assurance Company, 56 L. J., P. C. 78 ; 56 L. T. 240— P. 0. Condition Precedent — Proviso against Suing before Arbitration.] — In an action on a fire policy the defendant pleaded that the policy was made subject to a condition that, if any difference should arise in the adjustment of a loss, the amount to be paid should be submitted to arbi- tration, and the insured should not be entitled to commence or maintain any action upon the policy until the amount of the loss should have been referred and determined as therein pro- vided, and then only for the amount so deter- mined ; that a difference had arisen, and the amount had not been referred or determined : — Held, that the determination of the amount by arbitration was a condition precedent to the right to recover on the policy, and the defence was an answer to the action. Collins v. Loohe (4 App. Cas. 674) distinguished. Virmy v. Big- nold or Norwich Union, 20 Q. B. D. 172 ; 57 L. J., Q. B. 82 ; 58 L. T. 26 ; 36 W. E. 479— D. Average Condition — Sub-tenant Insuring — Covenant to Bepair — Laches.] — A. being owner of a house granted a lease to G., containing a covenant by the tenant to repair, but not a covenant to insure. A. insured the premises virith the defendant company in the sum of 1,000Z., and G. also insured them with another company in the sum of 1,100Z. A.'s policy was subject, amongst others, to the usual average condition, viz., that if at the time of any loss or damage by fire happening to the insured pro- perty, there should be any other subsisting in- surance, whether effected by the insured or any other person " covering the same property," the defendant company should not be liable to pay or contribute more than its rateable proportion of such loss or damage. The premises being destroyed by fire, G. was paid upon his policy 6251., but did not apply the same in reinstating the premises, and subsequently became bank- rupt. In an action by A. on the policy effected with the defendants, they relied in their defence on the following points — (1), upon the condi- tion as exempting them from liability save as to 621., which they admitted to be due as their apportionment of the loss ; (2), on A.'s neglect and laches in not compelling G. to repair the premises, as disentitling A. to recover from the defendants more than the said sum of 621. : — Held, that neither defence could be sustained " Property" in such a condition means the estate of the insurer in the premises, not the actual 1007 INSURANCE— Fire. 1008 building. Andrews v. Patriotio Assurance Co.. 18L.K., Ir.355— Bx.D. Condition — Loss occasioned by " Incendiarism " ' — Fire spreading from adjoining Premises.] — Goods in a house were insured against fire by a policy containing a condition " that it did not cover any loss or damage occasioned by, or in consequence of, incendiarism." While the policy was subsisting, adjoining premises were set on fire by an incendiary, for whose act the policy- holder was admittedly not responsible ; and the fire having spread to the house containing the insured goods, they were destroyed : — Held, that the word " incendiarism " in the policy included any act of incendiarism wherever committed which directly caused the loss ; that in the absence of evidence pointing to any other cause, the act of the incendiary must be assumed to be the direct cause of the loss, and that therefore the insurance company was not liable. Walker v. London and Provincial Jnturance Company, 22 L. R., Ir. 572— Ex. D. Claim by postponed Bondholder — Payment to prior Bondholders by other Insurers of sufficient Sum to reinstate — Bent of Mortgaged Premises.] — The pursuers having a heritable security by bond on certain premises insured them against fire in the defender's office for 900Z. Prior securities had been given by the owner upon the same premises to other creditors, and those creditors had insured in other offices. The premises having been in part destroyed by fire, the prior incum- brancers recovered from and were paid by the offices in which they were insured an amount sufficient for the re-instatement of the premises, and for the payment of the rent during the period of re-instatement, but the premises were not in fact re-instated. It appeared that imme- diately before the date of the fire the value of the premises was sufficient to cover the prior bonds and that of the pursuers, but in conse- quence of the fire the value of the premises was so reduced that they were not sufficient to meet the balance remaining due to the prior creditors, and the pursuers' bond was left entirely un- covered : — Held, that the pursuers were entitled, notwithstanding the amount paid to the other creditors, to recover to the full extent of their loss, but that the pursuers were not entitled to recover anything in respect of the loss of rent of the premises after they had been damaged by fire. Westminster Fire Office v. Glasgow Provi- dent Investment Society, 13 App. Cas. 699 ; 59 L. T. 641— H. L. (Sc). Semble, that 14 Geo. 3, c. 78, s. 83, relating to the application of insurance money on houses destroyed by fire, does not extend to Scotland. II)., per the Earl of Selbome and Lord Watson. Assignment of Policy — Validity.] — A trader insured his stock in trade and other effects. These were destroyed by fire. He assigned the policies to trustees on trust to pay and divide the monies received thereunder among all his cre- ditors rateably, and to pay the balance, if any, to himself : — Held, that the assignment was not void under 13 Eliz. c. 5, at the suit of a creditor whose debt was under 50?. Green v. Brand, \ C. & E. 410— Lopes, J. " Policy "—What is.] — Any contract of insur- ance comes within the word " policy," and there is no statutory or formal document necessary to maliC a contract of insurance. If a contract of insurance is created by any binding means, that is a " policy" to all intents and purposes. Nor- wich JSguitaile Fire Assurance Society, In re, 57 L. T. 541— Kay, J. Guarantee Business and Treaty Business — Ultra Vires — Company in Liquidation.] — ^A fire insurance society being an unincorporated as- sociation, had powers of giving to, or taking from other offices policies by way of guarantee for the purpose of dividing the risk of insurance, and also under their powers entered into treaties with other companies appointing them their agents in foreign lands, and agreeing to accept and enter upon the risk of one-eighth of every fire insurance policy of such companies in force at the date of the treaty, or effected or re- newed after that date, and agreed to be on all risks simultaneously with the other com- panies, the other companies agreeing to pay a proportion of the premiums, 20 per cent, com- mission to be allowed on such premiums to the agent for the expenses of conducting the agency. The fire insurance society having gone into liquidation, the chief clerk allowed the claim of another company for sums due to them in re- spect of guarantee and treaty business. On summons by the liquidator to vary the certifi- cate : — Held, that guarantee business was in- surance business contemplated by the deed of settlement, and within the powers of the society ; that the treaty agreements did not constitute an amalgamation between the contracting com- panies, nor a partnership either inter se or as regarded third persons, but were agreements of agency • the society having had the benefit of these agreements, the burden of proof was upon them to show that the agreements were invalid ; that the treaty business was insurance busi- ness, being guarantee business carried on with a very unlimited faith in the agent; it was a re-insurance contract more wide and less prudent than an ordinary contract of re-insur- ance, but was within the powers of the society, and that the directors had by acquiescence ratified the acts of the manager of the agency department. lb. Limitation of Liability — Constructive Notice.] — In consequence of a decision that the N. society (now in course of being wound up) had not been acting ultra vires in entering into " treaty " agreements, and that the R. company were entitled to prove for their claim in respect of a transaction of that nature, the official liquidator of the N. society applied by summons for an order that no call should be made in respect of such claim upon any of the contributories of the N. society who had paid up the full amount of their shares, nor upon any of such contributories beyond the amount unpaid of their shares : — Held, that on the face of the contracts no limitation of liability was expressed, neither could it be inferred by intendment of law ; and that the doctrine of constructive notice could not be extended to cover such a case as the present : — Held, also, that the shareholders in the N. society were liable for the full amount of the claim ; and that not only was the capital stock of the N. society liable for those sums, but 1009 INSURANCE— Marine. 1010 that the liability was one which, until those sums were paid, must be without limit. Norwich Equitable Fire Assurance Society, In re, m L. T. 36— Eay, J. III. MAEINB. 1. Interest of Assubed. Duty of the Court.] — It is the duty of the Court always to lean in favour of an insurable interest, if possible, for it seems to me that after under- writers have received the premium, the objection that there was no insurable interest is often, as nearly as possible, a technical objection, and one which has no real merit, certainly not as between the assured and the insurer. Stock v. Inglis, 12 Q. B. D. 564 ; 53 L. J., Q. B. 356 ; 51 L. T. 449— Per Brett, M. R. Goods at Purchasers' Bisk — Sale of Goods ".f. 0. b."]— D. sold to B. 200 tons of German sugar. " f . 0. b. Hamburg ; payment by cash in liondon in exchange for bill of lading ; " the price to be variable according to the percentage of saccharine matter, which was not to exceed or fall short of certain limits. B. resold to the respondent the same quantity at an increased price, but otherwise upon similar terms. D. Also sold to the respondent 200 tons upon similar terms. To fulfil these contracts 390 tons (being ten tons short) were shipped in bags on one vessel at Hamburg for Bristol, no bags being set apart for one contract more than the other. Each bag was marked with its percentage of saccha- rine matter, and bills of lading with marks corresponding to the bags were sent to D. to be retained till payment in accordance with the contracts. The respondent was insured in floating policies " upon any kind of goods and merchandises " between Hamburg and Bristol, and duly declared in respect of this cargo. The ship sailed from Hamburg for Bristol and was lost. After receiving news of the loss, D. allo- cated 2,000 bags, or 200 tons, to B.'s contract, and 1,900 bags, or 190 tons, to the other con- tract. In an action upon the policies : — Held, that the sales being "f. o. b. Hamburg," the ■sugar was at the respondent's risk after ship- ment ; that he had an insurable interest in it, and that the underwriters were liable. Inglis V. Stoch, 10 App. Cas. 263 ; 54 L. J., Q. B. 582 ; 52 L. T. 821 ; 33 "W. E. 877 ; 5 Asp. M. C. 422— H. L. (E.) Be-insurers — Extent of Interest.] — See Vzielli V. Boston Marine Insurance Company, post, col. 1017. Mortgagees — Insurance against Absolute Total Loss — Payment off. ] — The mortgagees of a ship agreed with the mortgagors to effect an in- surance on the ship at the mortgagors' expense, the policy to be held by them as part of their security. After the ship had sailed, the mortgagees effected an insurance against absolute total loss only. On the voyage the ship was driven ashore in a gale, and having become a constructive total loss, notice of abandonment was given by the mortgagees to the underwriters. The mortgagors immediately gave notice that they would look to the mortgagees as if they were their under- writers for a full insurance, and recovered from them the full value of the ship. The ship re- mained for two months exposed to the perils of the sea, when she became a complete wreck, and was then sold without prejudice to the rights of the parties. After the sale, but before this action, the mortgage was paid off : — Held, in an action by the mortgagees against the underwriters claiming for an absolute total loss, that the mortgagees, though their mortgage had been paid off, had an insurable interest in the ship, the mortgagors having ceded to them their rights under the policy when they were paid the full value of the ship. Levy v. Mer- chants Marine Insurance Company, 52 L. T. 263 ; 1 C. & E. 474 ; 5 Asp. M. C. 407— Mathew, J. Purchasers of Goods also Charterers.]— Where the charterers of a vessel were also the pui'- chasers of a cargo of wheat to be shipped on board, and the master of the vessel from time to time received delivery from the vendors : — Held, that such delivery from time to time was a delivery to the purchasers, that it vested in them a right of possession and property, _ and that, consequently, they had an insurable inte- rest in such wheat as had been so delivered. Anderson v. Morice (1 App. Cas. 713), dis- tinguished ; Oxendale v. Wetherdl (9 B. & C. 387), approved. Colonial Insurance Company of New Zealand v. Adelaide Marine Insurance Company, 12 App. Cas. 128 ; 56 L. J., P. C. 19 ; 56 L. T. 173 ; 85 W. R. 636 ; 6 Asp. M. C. 94— P.O. Advances on Ship — ' ' Pull interest admitted." ] — A policy insuring cash advances on n. ship is within 19 Geo. 2, c. 37, s. 1. Such a policy- containing the term " full interest admitted " is avoided by that statute. Smith v. Bcynolds (1 H. & N. 221) ; and De Mattes v. North (3 L. E., Ex. 185), followed. Serridge v. Man On In- surance Company, 18 Q. B. D. 346 ; 56 L. J., Q. B. 223 ; 56 L. T. 375 ; 35 W. E. 343 ; 6 Asp. M. C. 104— C. A. 2. DtJEATION OF ElSK. " Whilst in Port " — Pairway of Navigable Channel.] — A ship insured for a voyage to any port of discharge in the United Kingdom, " and whilst in port during thirty days after arrival," arrived at Greenock, discharged her cargo, and was placed in a dock for repairs. Within thirty days after her arrival she left the dock in ballast for the port of Glasgow, in tow of a steam-tug, to proceed on a new voyage, and had reached the fairway of the channel of the Clyde, her stern being about 500 feet distant from the harbour works, when she was capsized by a sudden gust of wind, and sustained damage : — Held, that the ship at the time of the accident was not "in port" within the meaning of the policy, and that the underwriters were not liable. ■' Garston " Sailing Ship Company v. HioHe (15 Q. B. D. 580) discussed. Hunter v. Northern Marine Insurance Company, 13 App. Cas. 717 — H. L. (Sc.) "At and from Port."]— Where the plaintiffs proposed to insure a wheat cargo "at and from " port, and the defendants, " in accordance with your written request," granted an insurance 1011 INSURANCE— Manwe. 1012 " from " port : — Held, that there was a complete contract to insure " at and from " port. Colonial iTisurance Company of New Zealand v. Adelaide Marine Inswranee Company, supra. Commencement of Bisk — Shipment of Portion.] . — Where a contract of insurance related to wheat cargo then on board or to be shipped in the " D. of S." : — Held, that the risk commenced as soon as any portion thereof was on board. n>. Bisk of Craft till Goods landed — Tranship- ment from Lighters into export Vessel.] — A policy of insurance on goods which includes " all risk of craft until the goods are discharged and safely landed " does not cover the risk to the goods while waiting on lighters at the port of delivery for transhipment into an export vessel. Honlder v. Merchants Marine Inmrance Com- pany, 17 Q. B. D. 354 ; 55 L. J., Q. B. 420 ; 55 L. T. 244 ; 34 W. K. 673 ; 6 Asp. M. C. 12— C. A. Fnmps engaged " at the Wreck."] — A policy of insurance was efiected on salvage pumps in- sured '• from the 30th of December, 1882, to the 12th of January, 1883, . . . whilst engaged in sal- vage operations at the wreck of the C," " in- cluding all risk whilst being conveyed from B. to on board the wreck." It was shewn that the or C. was floated by means of the pumps which were brought from B., and placed on board her, and that she was kept afloat by the pumps, and that she partly steamed and partly was towed by another vessel for a distance of nearly forty miles, until she had almost reached B., the nearest port of safety, when she sank in deep water, with the salvage pumps on board, on the 4th of January, 1883 : — Held, that the loss was not covered by the policy. Dijiori v. Adams, 53 L. J., Q. B. 437 ; 1 C. & E. 228— Cave, J. Time Policy — Chartered Freight.]— The plain- tiffs were the owners of a vessel which they chartered on certain terms as regards payment of freight for six months from the 21st of March, 1881, with the option to the charterers of extending the time for a period of three or six months. A clause in the charter-party provided that in the event of loss of time by collision, whereby the vessel was rendered incapable of proceeding for more than forty- eight hours, payment of hire was to cease until such time as she was again in an efficient state to resume her voyage. On the 4th of April, 1881, the plaintiffs insured against loss of freight with the defendant " at and from and for and during the space of six calendar months from the 15th of April to the 14th of October, 1881," the defendant to pay only loss of hire which might arise under the clause in the charty-party "for accidents occurring between the 15th of April and the 15th of October." On the 27th of June, 1881, the vessel, while on a voyage, struck something soft with her bottom, but was able to proceed on her voyage, and it was not until the 18th of November, when she arrived at Liverpool, that it was dis- covered that she required considerable repairs, owing to damage admittedly caused by the acci- dent in June. The charterers, who had exer- cised their option of continuing the charter until the 21st of December, thereupon gave notice to the plaintiffs discontinuing the hire until the vessel was in a fit state to resume em- ployment, which she never was until the end of December : — Held, that as the policy was a time policy, the loss insured against must happen during the period covered by the policy ; and that the defendant's liability being confined to loss of chartered freight between the 15th of April and the 15th of October, could not be extended so as to include loss of hire which only occurred after the expiration of that time. Hough V. Head, 55 L. J., Q. B. 43 ; 53 L. T. 809 ; 34 W. R. 160 ; 5 Asp. M. 0. 505— C. A. 3. Nature op Risk. ■ ' Perils of the seas and all other Perils," &c. — Donkey-engine, Injury to.] — A steamer was in- sured by a time policy in the ordinary form on the ship and her machinery, including the don- key-engine. For the purposes of navigation the donkey-engine was being used in pumping water into the main boilers, when owing to a valve being closed which ought to have been kept open water was forced into and split open the air- chamber of the donkey-pump. The closing of the valve was either accidental or due to the negligence of an engineer and was not due to ordinary wear and tear : — Held, that whether the injury occurred through negligence or acci- dentally without negligence, it was not covered by the policy, such a loss not falling under the words "perils of the seas," &c., nor under the general words " all other perils, losses, and mis- fortunes that have or shall come to the hurt, detriment or damage of the subject-matter of insurance." West India and Panama Telegraph Company v. Home and Colonial Marine Insur- ance Company (6 Q. B. D. 51), disapproved. Tliames and Mersey Marine Insurance Company V. Hamilton, 12 App. Gas. 484 ; 56 L. J., Q. B. 626 ; 57 L. T. 695 ; 36 W. R. 337 ; 6 Asp. M. C. 200— H. L. (E.) " Improper Navigation of Ship "— Hegligence —Damage to Cargo— Insufficiently-closed Port,] — By the articles of a mutual assurance associa- tion the members agreed to indemnify each other against losses, ' damages, and expenses arising from or occasioned by any loss or damage of or to any goods or merchandize caused by "im- proper navigation of the ship carrying the goods," for which any such member might be liable. A cargo of wheat was shipped on board a vessel belonging to the plaintife, who were members of the association. During the loadiug of the cargo ah opening or port in the sideof the vessel was by the negligence of persons employed by the plaintiffs insufficiently secured, so that during the voyage water leaked in and damaged the wheat in the lower hold, and the plaintiffs be- came liable to pay and paid compensation to the owners of the cargo. The leak did not hinder or impede the navigation of the vessel in the course of her voyage : — Held, that this was a damage arising from " improper navigation of the ship," within the articles of association, for which the plaintiffs were entitled to recover. Carmichael v. Liverpool Sailing Ship Owners" Association, 19 Q. B. D. 242 ; 56 L. J., Q. B> 428 ; 57 L. T. 550 ; 35 W. R. 793 ; 6 Asp. M. C. 184— C. A. 1013 INSUEANCE— iVIa?-me. 1014 4. Concealment of Facts. Graft Bisk— Employment of Lightermen with Bestrioted Liability — Notice.] — On policies of marine insurance on goods, which included risks on crafts and lighters, underwriters to the know- ledge of the plaintiffs charged a higher rate of premium where the insurance was with no re- course against lightermen (which meant where the lighterage was done on the terms that the liability of the lightermen was to be less than that of common carriers, namely, for negligence only), than they charged where there was such recourse, and the liability of the lightermen was to be that of common carriers. The plaintiffs effected with the defendant, a Lloyd's under- writer, a policy of marine insurance on goods which included risk on craft and lighters, and was not with no recourse against lightermen. At the time of effecting such policy the plaintiffs had an arrangement with one H., by which he was to do all the plaintiffs' lighterage on the terms that he was only to be liable for negli- gence : — Held, that if the plaintiffs intended that the goods so insured should be landed under such arrangement with H., it was a fact which a prudent and experienced underwriter would take into consideration in estimating the premium, and that therefore a jury would be justified in finding that the non-communication of it to the defendant was the concealment of a material fact which vitiated the policy. A mere disclosure of the existence of such arrangement to the defendants' solicitor is not notice of it to the defendant. Tate v. Sydop, 15 Q. B. D. 368 ; 54 L. J., Q. B. 592 ; 53 L. T. 581 ; 5 Asp. M. C. 487--C. A. UTame of Ship uncertain — Usage at Lloyd's.] — Where an assured expects, but is not certain, that goods wiU come by a particular ship, the name of such ship is not a material fact, the non- disclosure of which prevents the policy from attaching ; nor in such a case is there any usage of underwriters at Lloyd's compelling the assured to disclose it. Knight v. Cotesworth, 1 C. & E. 48 — Mathew, J. Concealment by Agent through whom Policy not effected.] — The plaintiffs instructed a broker to re-insure an overdue ship. Whilst acting for the plaintiffs the broker received information material to the risk, but did not communicate it to them, and the plaintiffs effected a re-insurance for 800Z. through the broker's London agents. Afterwards the plaintiffs effected a re-insurance for 7001., lost or not lost, through another broker. The ship had in fact been lost some days before the plaintiffs tried to re-insure, but neither the plaintiffs nor the last-named broker knew it, and both he and the plaintiffs acted throughout in good faith : — Held, that the knowledge of the first broker was not tlie knowledge of the plain- tiffs, and that the plaintiffs were entitled to recover upon the policy for 7001. Mtzherbert v. Mather (1 T. E. 12), Gladstone v. King (1 M. & S. 35), Strihley v. Imperial Marine Insurance Company (1 Q. B. D. 507), and Proudfoot v. Montefiore (2 L. B., Q. B. 511), commented on. Blaekhurn v. Vigors, 12 App. Cas. 531 ; 57 L. J., Q. B. 114 ; 57 L. T. 730 ; 36 W. E. 449 ; 6 Asp. M. 0. 216— H. L. (E.). The plaintiffs, underwriters in Glasgow, em- ployed there a firm of insurance brokers to re- insure a ship which was overdue. The brokers received information tending to show that the ship, as was the fact, was lost. Without com- municating this information to the plaintiffs they telegraphed in the plaintiffs' name to their own London agents, stating the rate of insurance premium which the plaintiffs were prepared to pay. Communications followed betweea the plaintiffs and the London agents, and the Lon- don agents, through a firm of London insurance brokers, effected a policy of re-insurance at a higher rate of premium, which policy was under- written by the defendant : — Held, that the policy was void on the ground of concealment of material facts by the agents of the assured. BlaclOmrn^. Vigors (supra) considered. Blaoh- hurn V. Saslam, 21 Q. B. D. 144 ; 57 L. J., Q. B. 479 ; 59 L. T. 407 ; 36 W. B. 855— D. 5. Wakbanties. Time Policy — Negative Words — Custom of Merchants.] — A time policy of marine insurance on A.'s ship, from the 29th of May, 1878, to the 28th of May, 1879, contained the words " war- ranted no St. Lawrence between the 1st of October and the 1st of April." The vessel was lost on the voyage home. The underwriters refused A.'s claim for a total loss on the ground of breach of warranty, inasmuch as the vessel had navigated in the Gulf of St. Lawrence during the prescribed period. A. contended that the above words referred exclusively to the River St. Lawrence. Admittedly no general custom of merchants could be proved ; but the facts established that the great river which discharges the waters of the North American lakes, and the gulf into which it flows, both bear the name of " St. Lawrence " ; that the navigation of both, though of the gulf in a less degree than of the river, was within the prohibited period dan- gerous : — Held, that the evidence disclosed no ambiguity or uncertainty suflicient to prevent the application of the ordinary rules of con- struction ; and according to those rules the whole St. Lawrence navigation, both gulf and river, is within the fair and natural meaning of these negative words, and therefore prohibited during tiie months in question. Sirrell v. Dryer, 9 App. Cas. 345 ; 51 L. T. 130 ; 5 Asp. M. C. 267— H. L. (Sc). Free from Capture and Seizure— Barratry.]— In a time policy of marine insurance on ship the ordinary perils insured against (including " barratry of the master ") were enumerated, and the ship was warranted " free from capture and seizure, and the consequences of any attempts thereat." In consequence of the barratrous act of the master in smuggling, the ship was seized by Spanish revenue officers, and proceedings were taken to procure her condemnation and confiscation. In an action on the policy to recover expenses incurred by the owner in obtaining her release : — Held, that the loss must be imputed to " capture and seizure," and not to the barratry of the master, and that the under- writer was not liable. Cory v. Burr, 8 App. Cas. 393 ; 52 L. J., Q. B. 657 ; 49 L. T. 78 ; 81 W. E. 894 ; 5 Asp. M. C. 109— H. L. (E.). '' Free from Average under 3 per cent, unless general " — Time Policy — Losses on separate Voyages,]— In a valued time-policy of marine 1015 IN SURANCE— Manree. 1016 insurance the ship and freight were warranted free from average under 3 per cent., unless general, or the ship be stranded, sunk, or burned. The ship made several voyages during the period insured, and incurred particular average losses. Such losses on any one voyage did not amount to 3 per cent., but the total of all the losses on all the voyages exceeded 3 per cent. In an action by the assured on the policy : — Held, that the plaintifEs were not entitled to recover, for although the separate losses on each voyage <:ould be added together, yet the losses occurring on distinct and separate voyages could not be added together so as to bring the amount of the losses up to 3 per cent. Stewart v. Merclumt Marine Insurance Company, 16 Q. B. D. 619 ; 55 L. J., Q. B. 81 ; 53 L. T. 892 ; 31 W. E. 208 ; 5 Asp. M. C. 506— C. A. General Average and Particular Average not to be added together.] — Under a policy of insurance covering all losses not recoverable under a policy of insurance containing the clause ■" warranted &ee from average under three per cent., unless general, or the ship is stranded, sunk, or burnt," the insured are entitled to recover where the particular average loss is less than three per cent., although if added to the general average loss it would be more than three per cent., if the ship be not stranded, sunk, or burnt. Price v. " A 1 " Ships' Small Damage Insurance Company, 57 L. J., Q. B. 459 — Oave, J. Affirmed 22 Q. B. D. 580 ; 58 L. J., Q. B. 269 ; 37 W. R. 566— C. A. Particular Average Lobs, Mode of ascer- taining.] — A time policy on ship contained the warranty " free from average under 3 per cent." During a voyage covered by the policy the ship sustained (without its being discovered) a frac- ture of her stern-post owing to perils of the sea, being a particular average loss within the policy. The voyage having been completed and the cargo delivered, the ship was put into dry dock for the purpose only of being cleaned, scraped, and painted, being in such a state that no prudent ■owner would have put to sea again without having her cleaned and scraped. When the ship was put into dry dock the injury was for the first time discovered, and the necessary repairs were then effected, and the ship was discharged from dry dock on the eighth day, repaired, cleaned, scraped, and painted. Had she required nothing but cleaning, scraping, and painting, she might bave been discharged on the evening of the third day. The repairs alone, without cleaning, &c., would have taken the whole eight days. If the whole or half of the dock dues for the first three days ought to be charged against the under- writers in account, there was a particular average loss exceeding 3 per cent. If the cost of the repairs plus the dock charges for the last five days were alone to be charged against the under- writers, there was not a particular average loss of 3 per cent. If the dock charges for the first three days ought to be attributed partly to the repairs and partly to the cleaning, &c., then (so far as the apportionment was a question of fact) it was to be taken that one-half of those charges should be attributed to each purpose : — Held, that although a contract of marine insurance is a contract of indemnity, and though the result would be that the shipowners would be relieved of part of the dock charges which they would otherwise have had to pay themselves, they were entitled to have the dock charges for the first three days apportioned between the repairs on the one hand and the cleaning, &c., on the other ; that the apportionment should be one-half to each purpose, and that there had therefore been a particular average loss exceeding 3 per cent. Marine Insurance Company v. China Trans- pacific Steamship Company, 11 App. Cas. 573 ; 56 L. J., Q. B. 100 ; 55 L. T. 491 ; 35 W. K. 169 ; 6 Asp. M. C. 68— H. L. (B.). 6. Losses. Warranties.] — See supra. General Average — Expenses of re-shipping Cargo.] — A ship on a voyage having sprung a dangerous leak, the captain, acting justifiably for the safety of the whole adventure, put into a port of refuge to repair. In port the cargo was reasonably, and with a view to the common safety of ship, cargo, and freight, landed in order to repair the ship. The ship was repaired, the cargo reloaded, and the voyage completed : — Held, that the cargo-owners were not charge- able with a general average contribution in re- spect of the expenses of reshipping the cargo. Atwood V. Sellar (4 Q. B. D. 342 ; 5 Q. B. D. 286) discussed. Svendsen v. Wallace, 10 App. Cas. 404 ; 54 L. J., Q. B. 497 ; 52 L. T. 901 ; 34 W. R. 369 ; 5 Asp. M. C. 453— H. L. (E.). Actnal Total Loss — Sale of Ship by Gonft — Proceeds less than Salvage — Derelict.] — To constitute a total loss within the meaning of a policy of marine insurance it is not necessary that a ship should be actually annihilated or destroyed. If it is lost to the owner by an adverse valid and legal transfer of his right of property and possession to a purchaser by sale under decree of a court of competent jurisdiction in consequence of a peril insured against, it is as much a total loss as if it had been totally annihilated. Cossma/n v. West, 13 App. Cas. 160 ; 57 L. J., P. 0. 17 ; 58 L. T. 122 ; 6 Asp. M. C. 233— P. C. Where a ship had been deserted by her master and crew, having been previously placed by them in a sinking condition, but had been subsequently taken possession of by salvors, towed into port, and there sold together with the cargo, by order of the Admiralty Court, for less than the actual cost of the salvage services — Held, in actions upon policies on the ship and freight respectively, that, assuming the posses- sion by salvors of a derelict vessel to be only a constructive total loss, the subsequent sale con- stituted an actual total loss of ■ both ship and cargo. lb. Constructive — Continuous Perils.] — The mortgagees of a ship agreed with the mortgagors to effect an insurance on the ship at the mortgagors' expense, the policy to be held by them as part of their security. After the ship had sailed, the mortgagees effected an insurance against absolute total loss only. On the voyage the ship was driven ashore in a gale, and having become a constructive total loss, notice of abandonment was given by the mortgagees to the underwriters. 1017 IN SUE ANCE— Marine. 1018 The mortgagors immediately gave notice that they would look to the mortgagees as if they were their underwriters for a full insurance, and recovered from them the full value of the ship. The ship remained for two months exposed tu the perils of the sea, when she became a complete wreck, and was then sold without prejudice to the rights of the parties. After the sale, but before this action, the mortgage was paid off : — Held, in an action by the mortgagees against the rmderwriters claiming for an absolute total loss, that as the ship when sold had become an absolute total loss from perils which were continuous, the plaintiffs were entitled to recover. Levy v. Merchants Marine Insurance Company, 52 L. T. 263 ; 1 C. & B. 474 ; 5 Asp. M. C. 407— Mathew, J. Constructive Total Loss— Notice of Abandon- ment — ^Eeinsnrance.] — Upon a constructive total loss happening to the ship insured, notice of abandonment need not be given to the under- writers of a policy of reinsurance. The owners of a ship insured hter for twelve months in an ordinary Lloyd's policy, which contained a suing and labouring clause. The underwriters of the Lloyd's policy reinsured themselves with a French company which reinsured itself with the defendants. The policy underwritten for the French company by the defendants was for 1,0002. ; bound them to pay the sum that might be paid on the original policy ; was to cover the risk of total loss only, and contained a suing and labouring clause. Whilst the policy was in force, the ship went ashore and was much damaged. Her owners' gave notice of abandonment to the underwriters of the Lloyd's policy, but notice of abandonment was not given to the defendants ; the underwriters of the ship ultimately settled with her owners at 88 per cent. They expended more than 5,0002. in floating the ship, and sold her to a builder who repaired her at a cost of 9,0002., and resold her for 11,2002. The cost of floating the ship (after deducting the price paid by the shipbuilders) being added to the 88 per cent, represented a loss of 112 per cent. In an action by the French company as reinsurers against the defendants : — Held, that a con- structive total loss had occurred, and that as the defendants had bound themselves to pay as might be paid on the original policy, they were liable to the extent of 1,0002. ; but that they could not be held liable for more, as the under- writers of the Lloyd's policy were not the " factors, servants, or assigns " of the plaintiffs within the meaniog of the suing and labouring clause, and that the defendants were not liable, at least by virtue of that clause, for any part of the expenses incurred in floating the ship. UzielU V. Boston Marine Insurance Company, lo Q.B.D. 11 ; 54 L. J., Q. B. 142 ; 52 L. Tt 787 ; 33 W. K. 293 ; 5 Asp. M. 0. 405— C. A. Owner altering Obsolete Ship at less Cost instead of Reinstating.] — ^A ship, insured on a time policy, had above her main deck a saloon deck for passengers. During the time covered by the policy the saloon deck was destroyed by fire. At the time of the fire the ship was engaged in carrying cargo, being obsolete as a passenger ship and useless for passenger traific. After the expiration of the policy the ship was converted into a cargo-carrying ship, and the saloon deck for passengers was not reinstated. The cost of converting the ship was less than the cost of the reinstatement of the saloon deck would have been. The ship, after the alteration, was as valuable for sale or use as she was before the accident. In an action by the shipowners against the underwriters, to recover the cost of reinstatement of the saloon deck : — Held, that as the shipowners were not entitled to recover more than they had lost, they were not entitled to recover the cost of reinstatement, but only the actual cost of converting the ship. Bristol Steam Navigation Company v. Indemnity Mutual Marine Insurance Company, 67 L. T. 101 ; 6Asp. M. C. 173-D. Freight — Salvage — Duty of Shipowner.]— A shipowner shipped goods of his own on his own ship for a particular voyage from Sunderland to- Valparaiso, and effected a policy of insurance on " freight." The ship was run into and damaged at the port of loading with the goods on board after the policy had attached, whereby the cargo was so damaged that it had to be unloaded, and the particular adventure was frustrated. The ship was detained in port some six weeks, and all expenses of repairs and demurrage were paid by the owners of the colliding ship. When again in a sea-going condition she was offered a similar cargo to the same port by the owners of the colliding ship ; this the shipowner refused^ and sailed with another cargo elsewhere : — Held, that the shipowner could recover nothing on the policy, inasmuch as the salvage was, or might have been, equivalent to the freight insured. Gayner v. Sunderland Joint Stock Premium Association, 1 C. & E. 293— Day, J. Separate Policies on Ship and Freight — Pay- ment for Total loss on Ship — Sight of Under- writers on Ship to Damages recovered by Assured for Unearned Freight.] — The defendants effected a policy of insurance on their ship for 1,0002. with the plaintiffs ; but insured the freight with other underwriters. The ship, while proceeding- to her port of loading under a charter-party, was^ run into and damaged by another ship. The defendants abandoned her to the plaintiffs, who settled with them as for a total loss. The defendants afterwards recovered in the Admiralty Division,, against the owner of the other ship, damages in respect of the loss of the ship, and also of the freight which had not been earned : — Held, that the plaintiffs were not entitled to recover the damages recovered in respect of the loss of freight, such damages being in the nature of salvage on freight ; for freight which has not been earned is not an incident of the ownership of the ship, and does not therefore pass to the underwriters, who have paid as for a total loss on the ship. Sea Insurance Company v. Maiden or Sodden, 13 Q. B. D. 706 ; 53 L. J., Q. B. 252 ; 50 L. T. 657 ; 32 W. E. 841 ; 5 Asp. M. 0. 230— C. A. 7. Actions on Policy. Third Parties — Claim for Indemnity — Under- writers — Suing and labonring Clause.] — The defendant insured his ship under a policy con- taining the usual suing and labouring clause. In an action to recover for work alleged to have been done and expenses incurred by the plaintiffs for the defendant, at his request, in respect of attempting to save the ship during the continu- 1019 INSURANCE— Manwe. 1020 anoe of the policy : — Held, that the defendant was not entitled to bring in the underwriters as third parties under Ord. XVI. r. 48, because they d'd not, by the suing and labouring clause, con- tract to indemnify the defendant in respect of any contract made by him with the plaintiflEs. Johnston v. Salvage Assnoiation, 19 Q. B. D. 458 ; 57 L. T. 218 ; 36 W. R. 56 ; 6 Asp. M. C. 167— C. A. Action by Underwriters to restrain Holders from Proceeding on Policy.] — If a policy is liable to be completely avoided, as on the ground of fraud or misrepresentation, a Court of Equity has jurisdiction- to direct its delivery up and cancellation, but it has no jurisdiction to direct the cancellation of a policy to any claim on which there is a good legal defence, or to declare that there is no liability upon it. If there is danger of the evidence for the defence being lost, the remedy is, not an action for cancellation, but an action to perpetuate testimony. Brook- ing V. Maudslay, 38 Ch. D. 636 ; 57 L. J., Ch. 1001 ; 58 L. T. 852 ; 36 W. R. 664 ; 6 Asp. M. C. 296— Stirling, J. 8. Mutual Insurance Associations. Limited by Guarantee — Limitation of Liability — Members having Twofold Liability. ] — A mutual marine insurance association was incor- porated, under the Companies Act, 1862, as an association limited by guarantee. The memo- randum of association declared that every mem- ber undertook to contribute to the assets of the association, in the event of its being wound up, a sum not exceeding bl. for the payment of the debts and liabilities of the association, and the costs, charges, and expenses of winding it up, and for the adjustmeut of the rights of con- tribntories amongst themselves. The defendant entered his ship to be insured in the association, and by the rules of the association he, by so doing, also became an insurer of the ships of other members of the association who entered their ships in the same class. While the de- fendant continued to be a member the association was wound up. In an action brought, pursuant to the rules of the association, to recover from the defendant a sum of 35Z. as contribution towards losses incurred by other members insured in the same class as that in which he had entered his ship, the defendant contended that his liability was limited by the memorandum of association to a sum of 5Z. : — Held, that the limit of 51. only applied to the liabilities incurred by the defendant as a member of the association to the association, and that his liability as an insurer towards the other members of the asso- ciation who entered their ships in the association was not limited to that amount. Lion Mutual Marine Insurance Association v. Tncher, 12 Q. B. D. 176 ; 53 L. J., Q. B. 185 ; 49 L. T. 764 ; 32 W. R. 546— C. A. Action for Contributions — Managing Owner — Ffincipal and Agent.] — The managing and part owner of a steamship became a member of a mutual insurance association, and took out a policy on behalf of himself and his co-owners in respect of the ship. By the articles of association every person was deemed to be a member " who in his own name, or in his name as agent, insures any ship in pursuance of the regulations of the company," and they also provided that the funds required for the payment of claims should " be raised by contributions from all the members." By the policy it was agreed between the assured and the company, "that without prejudice to the rights and remedies of the company against the said person or persons effecting this insurance, as a member or members of the company, in re- spect of this insurance, the assured shall pay to the company, in lieu of premiums, all the sums and contributions which the company are entitled to call upon the said person or persons effecting this insurance, as a member or members of the company, to pay to the company in respect of this insurance according to the articles of asso- ciation of the company, and that the provisions contained in the said articles of association shall be deemed and considered part of this policy, and shall, so far as regards this insurance, be as binding upon the assured as upon the said person or persons effecting this insurance." Certain contributions having, in accordance with the articles of association, become payable by the managing owner in respect of the ship, and the managing owner being bankrupt, the association sued the other owners to recover the contribu- tions : — Held, that, under the terms of the policy, they were liable, although the policy was effected by the managing owner alone. Ocean Iron Steam- ship Insurance Association v. Leslie, 22 Q. B. D. 722 ; 57 L. T. 722 ; 6 Asp. M. C. 226— Mathew, J. Principal and Agent—Tndisclosed Principal not Member of Association.] — T., the manager and part owner of a ship, became a member of a mutual insurance asso- ciation, and took out a policy with such asso- ciation in respect of the ship. The articles of association gave power to the committee, in order to provide funds for the business of the association, from time to time to direct sums to be paid by the members rateably. By the policy, which was made by the association under their seal, the association agreed with T. that the members thereof should according to the articles of association pay and make good losses and damages to the ship occasioned by the risks in- sured against, subject to a proviso that the asso- ciation should be liable only to the extent of so much of the funds as they were able to recover from the members liable for the same, and which were applicable for the purpose of paying claims under the policy. Certain contributions to the funds of the association having, in accordance with the articles, become payable by T. in respect of the ship, and T. being bankrupt, the associa- tion sued N., another part owner of the ship, for such contributions as an undisclosed principal of T. : — Held, that the effect of the articles of asso- ciation and the policy being that the liability for such contributions was imposed on members only, and N. not being a member of the associa- tion, he could not be sued for such contributions as an undisclosed principal of T. United King- dom Mutual Steamship Assurance Association V. Nevill, 19 Q. B. D. 110 ; 56 L. J., Q. B. 522 ; 35 W. R. 746--C. A. Ships Insured without Stamped Policy — Estoppel.] — Where a member of a mutual in- surance company, afterwards converted into a limited company, has vessels on its books as insured, and pays calls, and otherwise acts as if he were a member of the company, he is, in any action brought against him by the limited com- 1021 TNTEEEST. 1022 pany for calls on losses, estopped from denying his liability, and from setting up either any irre- galarity in the transfer from the one company to the other, or that the losses were paid with- out any stamped policies being entered into in contravention of 30 Vict. c. 23, s. 7. Harrow Mutual Ship Insuranoe Compa/ny v. AshiurTwr, U L. J., Q. B. 377 ; 54 L. T. 58 ; 5 Asp. M. C. 527— C. A. Annual Policies — Forfeiture for non-payment of Contribution — Set-off of Contribution against Loss. ] — By the rules of a marine Insurance asso- ciation the members insured each other's ships from noon of Feb. 20 in any year, or from the date of entry of a vessel, until noon of Teb. 20 in the succeeding year ; and the managers were empowered to levy contribu- tions of one-fourth part of the estimated annual premium quarterly in each year, such premiums of insurance to form a fund for the payment of claims, and if any member should refuse to pay his contributions thereto, his ship should cease to be insured, and he should thence- forth forfeit all claims in respect of any loss. On the 5th April, 1881, a loss, incurred in the year 1880-1 upon a ship belonging to the plain- tiff, and insured in the association, was fixed by an average adjuster at 180Z. A call of ill. \0s., made on the plaintiff on the 5th May, 1881 , for the second quarter of 1881-2, was by mutual consent set off against the loss. On the 13th May, 1881, the association paid the plaintiff lOOZ. on further account of the loss. On the 23rd June, 1881, a ■call was made on the plaintiff of 52^. 16s. M., and on the 5th July, 1881, another call of Z\l. is. The plaintiff having tendered the balance due from him, the association refused to accept it, and during the pendency of an action to recover the full amount of the two calls one of the plain- tiff's ships insured in the association was wholly lost : — Held, on case stated, that the plaintiff's ship did not cease to be insured, and that he had not forfeited his claim in respect of the loss. Williams v. British Marine Mutual Insurance Association, 57 L. T. 27 — D. INTEREST. On Legacies.] — See Executor and Ajdmini- STEATOK, III., 3, a. On Costs.]— See Poos Law. MALICIOUS INJURY. See CRIMINAL LAW, II. 20, 28. MALICIOUS PROCEDURE AND FALSE IMPRISONMENT. Procuring Bankruptcy- Adjudication not set aside.] — A bankrupt whose adjudication in bankruptcy has not been set aside cannot main- tain an action for maliciously procuring the bankruptcy, and such an action may be sum- marily dismissed upon summons as frivolous and vexatious. Metropolitan Banh v. JPooley, 10 App. Cas. 210 ; 54 L. J., Q. B. 449 ; 53 L. T. 163 ; 33 W. R. 709 ; 49 J. P. 756— H. L. (E.). Presenting Petition to Wind up Company — Seasonable and Probable Cause.] — The defen- dant, who had been a shareholder in the plaintiff company, instructed certain brokers to sell his shares, and signed a transfer. The brokers informed him that they could not sell the shares, but the transfer was not returned to him. Shortly afterwards he presented a petition to wind-up the company on the ground of fraud in its for- mation, whi ch was duly advertised. Before serving the petition he discovered that the shares had been sold and the transfer registered, and at once gave notice to withdraw the petition, which was accordingly dismissed with costs. In an action by the company for maliciously and with- out reasonable and probable cause presenting the petition, the judge asked the jury whether the defendant at the time he presented the petition, honestly believed that he was a shareholder ; but they were not asked whether the defendant had taken reasonable care to inform himself of the fact : — Held, that the latter question should have been left, and that there must be a new trial. Quartz Hill Consolidated ffold Mining Co. v. Eyre, 50 L. T. 274— D. Application for Search Warrant — ^Reasonable Cause for Suspicion.] — By 48 & 49 Vict. c. 69 (Criminal Law Amendment Act, 1885), s. 10, it is provided that " if it appears to any justice of the peace, on information made before him on oath by any parent, relative, or guardian of any woman or girl, or any other person who, in the opinion of the justice, is bona fide acting in the interest of any woman or girl, that there is reasonable cause to suspect that such woman or girl is unlawfully detained for immoral purposes by any person in any place within any^ juris- diction of such justice, such justice may issue a 1171 MALICIOUS PEOCEDUEE, ETC. 1172 warrant authorising any person named therein to search for .... such woman or girl " : — Held, that under this section the justice has a judicial duty to perform, and that his decision that there is reasonable cause for such suspicion is a protection to a person who bona fide applies for a search warrant, and is an answer to an action for maliciously causing the warrant to issue. Hope v. Evered, 17 Q. B. D. 338 ; 55 L. J., M. C. 146 ; 55 I;. T. 320 ; 34 W. B. 742 ; 16 Oox, C. C. 112— D. In an action for malicious prosecution, it is no evidence of malice on the part of the defendant that in applying for a search warrant to issue against the plaintiff, the defendant asked that a warrant at the same time might issue against another person for the same offence. Utting v. Berricy, 52 J. P. 806— D. Malicious Frosecation — Newspaper Libel Act — Conviction no Bar.] — The plaintiff was in- dicted under s. 4 of the Newspaper Libel Act, though only committed for trial under s. 5 ; he therefore brought an action for malicious prose- cution : — Held, that the conviction was no bar to an action for malicious prosecution under s. 4 of the act. Boaler v. Holder, 51 J. P. 277— D. Against Corporation Aggregate.] — Per Lord Bramwell : — An action for malicious prose- cution will not lie against a corporation aggre- gate. Ahratli v. JVorth Eastern Railway, 11 App. Cas. 247 ; 55 L. J., Q. B. 457 : 55 L. T. 63 ; 50 J. P. 659— H. L. (B.). Eeaaonable and Probable Cause — Burden of Proof. ] — In an action for malicious prosecution the judge directed the jury that the burden of proof as to the want of reasonable and probable cause for the prosecution, and as to malice, lay on the plaintiff, and that it was for him to show that the defendants had not taken reasonable care to inform themselves as to the true facts of the case, and asked the jury to find whether they had taken such reasonable care, and whether they honestly believed the case which they laid before the committing magistrates. The jury answered both questions in the affirmative, and the judge entered judgment for the defendants : — Held, that there was no misdirection, and that the judgment was rightly entered. lb. • Reasonable and Probable Cause — Evi- dence of Malice. ]— A forged cheque had been presented at the defendants' bank, and the plain- tiff, because he was supposed to be one C. who was suspected, was arrested by the police on the charge of uttering it, and was then positively identified by the bank cashier as the man to whom the money was paid. In an action for malicious prosecution : — Held, that there was no evidence of the absence of reasonable and probable cause, that though, when the plaintiff set up an alibi and denied that he was C, the defendants found that evidence would be forthcoming which, if true, would establish these facts, it was no evi- dence of malice on the part of the defendants that they did not withdraw from the prosecution till the plaintiff had been thrice remanded ; that it not being the duty of the defendants to bring this evidence, which they doubted, before the magistrates, their not doing so was no evidence of malice. Held further, that the question whether the plaintiff was in fact C, or whether he was in fact the guilty person, was not a question relevant to the issue ; and it was nO' evidence of malice on the part of the defendants that they put witnesses into the box, who, as the defendants well knew, would assert their belief that the plaintiff was guilty. Harrison v. Na- tional Provincial Banh, 49 J. P. 390 — D. Palse Imprisonment — Arrest on Snspicion of Felony — Acquittal of Plaintiff — Misdirection.] — In an action for false imprisonment the de- fendant pleaded that the money was stolen from him by some person unknown, and that he gave the plaintiff into custody, suspecting him on reasonable and probable grounds of being the thief, but did not plead that the plaintiff had committed the theft. The plaintiff had been tried on charge of stealing the money, and was acquitted. At the trial of the civil action^ evidence was given on both sides as to the ques- tion whether the offence had been committed by the plaintiff. The learned judge who tried the case being of opinion that there was no- evidence of theft by any person other than the plaintiff, and that the plaintiff's acquittal pre- cluded the question of his guilt being tried in the civil action, directed a verdict for the plain- tiff notwithstanding the objection of the de- fendant's counsel, who required the question " whether the defendant's money had been felo- niously stolen by any person " to be left to the jury : — Held, a misdirection, and that it was open to the defendant upon the pleadings to show that the plaintiff had stolen the money, and that he was not precluded from doing so by the acquittal of the plaintiff on the criminal charge. Cahill V. Mtzffibbon, 16 L. R., Ir. 371— Q. B. D. Pawnbroker — Detention of Person offer- ing Article to pawn — Seasonable Suspicion.} —By the Pawnbrokers Act, 1872 (35 & 3& Vict. c. 93), s. 34, in any case where, on an article being offered in pawn to a pawnbroker he reasonably suspects that it has been stolen or otherwise illegally or clandestinely ob- tained, he may seize and detain the person so offering the article and the article, or either of them, and shall deliver the person and the article, or either of them (as the case may be) as soon as may be into the custody of a constable. The plaintiff offered in pawn to the defendant, a pawnbroker, a gold horseshoe pin, set with seven diamonds, and a ring. The de- fendant having previously received from the police a notice of articles recently stolen, amongst which was " a gold horseshoe pin, set with seven diamonds," and a ring, asked the plaintiff if he was a dealer. He replied that he was not. The defendant also asked the plaintiff where he obtained the articles. The plaintiff said that he got them from a publican, whose name and address he stated. The defendant gave the plaintiff into custody of a constable. It was afterwards proved that the articles inthe possession of the plaintiff had not been stolen, and that his statements were true. In an action by him for false imprisonment the judge left the question whether the defendant had a reasonable suspicion to the jury, who found their verdict for the plaintiff :— Held, that the question arising under the act whether the defendant reasonably suspected that the pin had been stolen or otherwise illegally or clandestinely obtained was for the judge ; that, on the facts, 1173 MANDAMUS. 1174 there was no evidence of absence of reasonable suspicion in the mind of the defendant, and therefore judgment sliould be entered for him. Howard v. Clarke, 20 Q. B. D. 558 ; 58 L. T. 401 ; 52 J. P. 310— D. Governor of Frison — Protection of War- rant.] — The governor of a prison is protected in obeying a warrant of commitment valid on the face of it, and an action for false imprisonment will not lie against him for the detention of a prisoner in pursuance of the terms of such war- rant. The plaintiff having been convicted by a court of summary jurisdiction and sentenced to seven days' imprisonment, a warrant of commit- meni was issued directing that the plaintiff should be imprisoned in a certain gaol for seven days. The plaintiff was an-ested on August 24, and lodged in prison on August 25, The governor of the gaol kept the plaintiff in prison until and dur- ing August 31 : — Held, that whether or not the plaintiff's sentence ran from August 24 or August 25, the governor was protected by the warrant, and was not liable to an action for false im- prisonment in respect of the plaintiff's detention on August 31. Henderson v. Preston, 21 Q. B. D. 362 ; 57 L. J., Q. B. 607 : 36 W. R. 834 ; 52 J. P. 820— C. A. AflSrming 59 L. T. 384- D. Liability of Company for Acts of Servants — Scope of Employment.] — Section 52 of the Tramways Act, 1870, which enacts that " it shall be lawful for any officer or servant of the promoters or lessees of any tramway " to detain any person defrauding the company of his fare, must be construed as limited to any officer or servant appointed for that purpose. A tramway company gave to their conductors printed in- structions, in which it was ordered that, except in cases of assault, conductors were not to give passengers into custody without the authority of an inspector or timekeeper. The conductor of a car, in which the plaintiff was a, passenger, de- tained the plaintiff, and gave her into custody on a charge of passing bad money : — Held, in an action for false imprisonment against the com- pany, that the defendants were not liable. Charleston v. London Tramways Company. 36 W. E. 367— D. Affirmed 32 S. J. 557—0. A. A passenger on a tramway tendered a half sovereign to conductor of the car in payment of the fare. The conductor, supposing the coin to be counterfeit, gave the passenger in charge to the police. Ss. 51 and 52 of the Tramways Act, 1870, empower officers or servants of the pro- moters or lessees of any tramway, to seize and detain any person seeking to avoid payment of his fare ,: — Held, that the tramway company were liable in an action against them by the passenger for false imprisonment. Furlong v. South London Tramways Company, 48 J .P. 329 ; 1 C. & B. 316— Stephen, J. MANDAMUS. MALTA. See COLONY. 1. In Particular 2. To Justices of the Peace. 3. Practice. 1. In Paeticulae Cases. To Central Criminal Court.] — Mandamus does not lie to the judges and justices of the Central Criminal Court, which is a superior court. Reg. V. Central Criminal Cou/rtJJ., 11 Q. B. D. 479 ^ 52 L. J., M. 0. 121 ; 15 Cox, C. C. 324— D. Commissioners of Inland Bevenue.] — Sect. 23 of 5 & 6 Vict. c. 79, provides for the return by the Commissioners of Stamps and Taxes of pro- bate duty on proof by oath and proper vouchers to their satisfaction of the payment of debts of the deceased, whereby the amount of probate duty payable on the estate is reduced below the amount which has been paid. By a subsequent^ act the Commissioners of Inland Revenue are substituted for the Commissioners of Stamps and Taxes. On an application by an administrator for a mandamus to the commissioners to pay to- the applicant the amount of duty overpaid by him, on the ground that he had supplied evidence of overpayment and had no other legal remedy :. — Held, that the mandamus ought not to issue, for the statute created no duty between the commissioners and the applicant, whose remedy, if the decision of the commissioners could be reviewed, was by petition of right. Rex v. Com- missioners of the Treasury (4 A. & E. 286) dis- approved of. Nathan, In re, or Reg. v. Inlamd Revenue Commis-noners, 12 Q. B. D. 461 ; 53 L. J., Q. B. 229 ; 51 L. T. 46 ; 32 W. R. 543 ; 48 J. P. 452— C. A. Income Tax Commissioners.] — Mandamus lies- to compel the Commissioners for special purposes- of Income Tax to issue orders for repayment of amounts certified by them to be overpaid. Reg. V. Income Tax Commissioners, 21 Q. B. D. 313 ;. 57 L. J., Q. B. 513 ; 59 L. T. 455 ; 36 W. R. 776 — C. A. Begistrar of Joint -Stock Companies.] — A writ of mandamus will lie against the Registrar of Joint-Stock Companies, though an official of the Board of Trade, which is a Committee of the Privy Council, if he refuse to perform a mere ministerial act which he is under a statutory obligation to perform. Reg. v. Registrar of Joinf-Stoch Companies, 21 Q. B. D. 131 ; 57 L. J., Q. B. 433 ; 59 L. T. 67 ; 36 W. R. 695 ; 52 J. P. 710— Per Wills, J. To Company to Begister Shareholder.] — A prerogative writ of mandamus will not lie to compel a company to register as a holder of shares therein, a person to whom they have issued certificates in respect of such shares where the company have issued prior certi- ficates in respect of such shares to someone else, without clear proof that the person to whom the last certificates were issued had a better title than the person to whom the earlier ones were issued, even though the person holding the 1175 MANDAMUS. 1176 earlier certificates has not been entered in the company's register as the holder of such shares. Reg. V. Charnwood Forest Railway, 1 C. & E. 419 — Denman, J. Aifirmed in C. A. 2. To Justices of the Peace. Befnsal to hear Case — Rule to show Cause.] — By the 5th section of 11 & 12 Vict. c. 44, it is enacted that, " whereas it would conduce to the advancement of justice, and render more effective and certain the performance of the duties of justices, and give them protection in the performance of the same, if some simple means, not attended with much expense, were devised by which the legality of any act to be done by such justices might be considered and adjudged by a court of competent jurisdiction, •and such justices enabled and directed to perform it without risk of any action or other proceeding being brought or had against them ; therefore in all cases where a justice or justices of the peace shall refuse to do any act relating to the duties of his or their office as such justice or justices, it shall be lawful for the party requiring such act to be done to apply to her Majesty's Court of Queen's Bench, upon an affidavit of the facts, for a rule calling upon such justice or justices, and also the party to be affected by such act, to show cause why such act should not be done." An information having been laid against P. under the 51st section of the Highway Act, 1864 (27 & 28 Vict. c. 101), for encroaching on a highway, the justices decided on evidence given that a claim of right set up by P. to the land alleged to have been encroached upon by him was bon3, fide, and thereupon refused to hear the case on the ground of want of jurisdiction. The com- plainant having applied under the 5th section of 11 & 12 Vict. c. 44, for a rule for the justices to show cause why they should not hear and deter- mine the case : — Held, that the application was properly made, the statute not being limited to cases in which the justices need protection in the performance of their duties. Reg v. PMIK- more, or Pilling, 14 Q. B. D. 474, u. ; 51 L. T. 205 ; 32 W. R. 593 ; 48 .1. P. 774— D. Eule or Mandamus.] — A rule under s. 5 of Jervis's Act, and a rule for a mandamus, calling upon justices to show cause why they should not proceed to hear and determine the matter of an application for a summons are concurrent reifledies. A rule under the 5th section of Jervis's Act is not confined to cases where the justices need protection in doing any act relating to their duties. Reg. v. Biron, 14 Q. B. D. 474 ; 54 L. J., M. C. 77 ; 51 L. T. 429 ; 49 J. P. 68— D. To State Case — Question of Fact.] — In pro- ceedings taken by the Fulham Board of Works for the paving of a lane as a " new street," within the meaning of the Metropolis Management Acts, the magistrate held that the lane was not a " street " within the meaning of the acts, and refused to state a case under 20 & 21 Vict. c. 43, as he considered the question one of fact ; — Held (discharging a rule for a mandamus to compel the magistrate to state a case), that the question whether the lane was a " street " or not was a question of fact and not of law, and that the magistrate could not be compelled to state a case. Reg. v. Shell, 50 L. T. 590 ; 49 J. P. 68— D. Eefusal to issue Summons.] — Where a magis- trate has refused a summons on the ground that the information does not disclose an indictable offence, the High Court of Justice has no juris- diction to review his decision, either as to law or as to fact, and therefore in such a case a rule, under 11 & 12 Vict. c. 44, s. 5, calling upon the magistrate to show cause why he should not hear and determine the application for a, summons, will not be granted. Lewis, Um parte, 21 Q. B. D. 192 ; 57 L. J., M. C. 108 ; 59 L. T. 338 ; 37 W. E. 13 ; 52 J. P. 773— D. Where justices entertain an application for a summons for a criminal offence, and have con- sidered the materials on which the application is based, and refused to hear more, or to grant the summons, the High Court will not interfere by mandamus to order them to hear it again. MaeMahon, Ex parte, 48 J. P. 70— D. Discretion — Vexatious Indictments Act.] — A mandamus will not be granted to interfere with the discretion of a magistrate who has refused to issue a summons for perjury on an information setting forth facts upon which no jury could convict. The provisions of s. 2 of the Vexatious Indictments Act (22 & 23 Vict, c. 17, s. 2), requiring a magistrate to bind over the prosecutor to prosecute, only apply where a charge or complaint has been made, and the person charged has been before the magistrate. Reid, Ex parte, 49 J. P. 600— D. Refusal to take Recognizance under Vexatious Indictments Act.] — If a justice hear an applica- tion under the Vexatious Indictments Act, and dismiss it for want of evidence, this is equivalent to a refusal to commit the defendant, and a mandamus will be directed. Reg. v. London {Mayor), 54 L. T. 646 ; 50 J. P. 711 ; 16 Cox, C. C. 77— D. After Adjudication — Rejection of Admissible Evidence.] — The court will not direct a man- damus to issue to compel justices to hear and determine a. case upon which after hearing evidence they have adjudicated, though at the hearing they had rejected certain evidence which was properly admissible. Reg. v. Yorli- sJiire JJ., GUI, Ex parte, 53 L. T. 728 ; 34 W. R. 108— D. Refusal to issue Warrants for Recovery of Rates.] — Where an application for a distress warrant for non-payment of rates is refused by the magistrate on the ground that an appeal is pending from the assessment : — Held, that the application for a mandamus was properly made under 11 & 12 Vict. c. 44, s. 5, the issue of the warrant being a merely ministerial and not a judicial act. Reg. v. Marsham, 50 L. T. 142 ; 32 W. R. 157 ; 48 J. P. 308— C. A. See also Health, IV. — Poob Law (Rates). 3. Practice. Application in Person,] — A rule under s. 5 of Jervis's Act may be moved by an applicant in person. Reg. v. Biron, supra. A prerogative writ of mandamus can only be 1177 MARKET. 1178 moved by counsel. Reg. v. Eariley, 49 J. P. 651.-D. ^ ■' QuEere, whether a rule in the nature of a mandamus, under 11 & 12 Vict. u. 44, a. 5, can be moved for in person. JJ. Beturn of TTnconditional Compliance.] — The practice which allowed a plea to a return of un- conditional compliance to a writ of mandamus is in no way affected by the provisions contained in Ord. LIII. i. 9 of the Eules of the Supreme Court, 1883. Iteg. v. Staffordshire JJ., or PireUll North JJ., 14 Q. B. D. 13 ; 54 L. J., M. G. 17 ; 51 L. T. 534 ; 33 W. E. 205 ; 49 J. P. 86— C. A. Beturn of Obedience.] — Upon a mandamus to justices to hear and determine an application for a certificate to sell wine to be consumed on the premises, they made a return of uncondi- tional compliance with the writ. Plea, that the justices were only entitled to refuse the applica- tion upon one or more of the four grounds specified in s. 8 of the Wine and Beerhouse Act, 1869, but that they refused the application on other grounds contrary to the statute : — Held, that the plea was good, as it must be taken to mean that in refusing the application the jus- tices had assumed to exercise a jurisdiction which they did not possess, and that they had therefore not substantially heard and determined the matter submitted to them. Reg. v. King, 20 Q. B. D. 430 ; 57 L. J., M. 0. 20 ; 58 L. T. 607 ; 36 W. R. 600 ; 52 J. P. 164— C. A. Alternative Bemedy — ^Bemedy eqnally Con- venient and EfEectnal.] — The remedy of a writ of mandamus will not be granted where there is another remedy, equally convenientand eflfectual, open to the applicant at the time when it be- comes necessary to resort to one or other of such remedies. Reg. v. Registrar of Joint Stock Companies, 21 Q. B. D. 131 ; 57 L. J., Q. B. 433 ; 59 L. T. 67 ; 36 W. R. 695 ; 52 J. P. 710— D. Fees for Entering Eule.] — Schedule 52 of the Order as to Supreme Court Fees, 1884, which provides for the payment of a fee of 21. on enter- ing or setting down " a cause or matter for trial or hearing in any court in London or Middlesex or at any assizes," is not confined to cases where the matter for hearing arises in an action. Such fee is therefore payable to the crown office on entering a rule nisi against a police magistrate ordering him to hear an application for a sum- mons. Hasker, Ess parte, 14 Q. B. D. 82 ; 54 L. J., M. C. 94— D. Bnle Absolnte — Costs — Not to be drawn up without Leave.] — Licensing justices agreed to grant a provisional Ucence for a railway refresh- ment room, according to plans shown, though they directed a change of site, which the appli- cant agreed to. There never was any further assent of justices to the alteration. At the. application for the final order the eight justices were equally divided. No adjournment was granted or asked for. A rule nisi for a mandamus being granted, the justices thereafter met again and agreed by a majority to make the final order : — Held, that the rule for a mandamus might be made absolute, but without costs, and was not to be drawn up till further application. Reg. V. Cox, 48 J. P. 441— D. Beturn to Mandamus- Evidence of Pretended Behearing,] — Licensing justices were ordered by mandamus to hear an application to renew a beer-house licence and made a return that they duly heard and determined it. The prosecutor pleaded to the return by traversing the return, and after issue, a jury found that it was a mere pretended rehearing, and gave a verdict for the prosecutor. The justices had decided the case on the question whether the applicant was the real resident occupier, and the jury acted chiefly on evidence that one of the justices was over- heard to say he would hear but would decide against the applicant : — Held, that there was no evidence to justify the finding of the jury that the justices did not hear and decide the case, and verdict set aside accordingly, and judgment entered for the justices. Reg. v. PireMll JJ., 49 J. P. 453— D. MANOR. See COMMONS. MANSLAUGHTER. See CRIMINAL LAW. MARINE INSURANCE. See INSURANCE. MARINER. See SHIPPING. MARKET. Bight of Crown to grant.] — The Crown has a right to grant a market franchise to one person over the land of another, though it cannot be exercised against the will of the person to whom the land belongs. Attorney- General v. Homer, 14 Q. B. D. 245 ; 54 L. J., Q. B. 227 ; 33 W. E. 93 ; 49 J. P. 326— C. A. Affirmed infra. There is no public right of holding fairs or markets. The right to set up a market or fair is a prerogative right, which can only be granted by the Crown after a preliminary inquiry under a writ of ad quod damnum. Downshire (Margnis^ v. O'Brien, 19 L. E., Ir. 380— V. 0. 1179 MAEKET. 1180 Limits of— "In or Near."]— A grant of a right to hold a market "in or near" a certain place is not a grant by metes and bounds. Attorney- General v. Horner, in C. A., supra — Per Lord Esher, M.E. Such a market may extend as far as reason- able convenience from time to time requires, if the market overflows honestly. lb. Quaere, liow far a grant " in or near " a place ■can lawfully extend. Ih. in H. L. infra. Dedication of Street subject to Market Bights.]— By letters patent in 34 Charles 2, the king granted market lights "in sive iuxta"a •certain place called "Spittle Square" to one who was lessee of the square, and had acquired the greater part of the reversionary interest in it. The grantee or his successors in title laid out the square as a market-place with four internal fitreets. The land immediately surrounding the square was afterwards laid out in four external streets, but it did not appear to whom the pro- perty in this surrounding land at any time be- longed. There was evidence of a usage from the time of living memory to grant licences and take tolls for the sale of marketable articles over parts of the external streets as well as over the market-place and the internal streets : — Held, that under the grant " in sive juxta" the market rights extended into the four external streets as well as over the market-place and the four internal streets ; and that the inference from the documents and evidence was that the streets were dedicated to the public subject to the exer- cise of the market rights. Attorney- General V. Borner, 11 App. Cas. 66 ; 55 L. J., Q. B. 19.S ; 54 L. T. 281 ; 34 W. R. 641 ; ,50 J. P. 564— H. L. (E.). "In or at."] — Under a grant of the right of holding markets and fairs " in or at " a town, the limits of the franchise include all the town, and the grantee has the right, in the absence of anything in the grant to the contrary, to appoint the place in which the market is to be held. Bownsldre (^Marquis) v. O'Brien, 19 L. E., Ir. 380— V.-C. " Town " — Application to extended Town.] — By s. 42 of the Kochdale Market Act of 1822, it is an offence punishable on summary conviction with a tine not exceeding bl. for any person to sell within " the town of Bochdale," other than within the limits of the market- place there (except in the vendor's private dwelling-house or the shop) any . . . . vegetables or other marketable commodities or provisions, &c. The respondent sold a quantity of potatoes in a street or place within the present municipal and parliamentary borough of Roch- dale, about a mile from and not within the said market-place. The limits of the town are not defined in the act of 1822, nor has any subse- quent act defined the meaning of the expression " town of Rochdale " as used in that act ; but since 1822 the town has increased, and is now, and for many years has been, a municipal and parliamentary borough, the boundaries of which have been extended and defined by Royal Charter and various acts of Parliament, and the borough as now existing was constituted by the Rochdale Improvement Act, 1872, by s. 8 of which act the boundaries of the town and borough were extended and made co-extensive with those of the parliamentary borough as specified in the Boundary Act, 1868, and the provisions of the Act of 1872, and of various other acts specified in s. 8, and " of all other acts at pre.sent applying, to and in force in and in relation to the existing town and borough," were to " apply to and be in force in and in relation to the borough." The street or place where the sale took place is an aggregation of about a dozen houses, and is within the said extended boundaries ; but prior to 1822 it was outside the then municipal borough, and though there arc one or more detached houses here and there along the road leading from the market- place to the spot in question, there is no con- tinuous line of buildings on any part of the said road. The justices were of opinion that the pro- hibition in s. 42 of the act of 1 822 was limited to the town as it existed in 1822, and that the spot in question was not within '■ the town of Rochdale " within the meaning of the Act, and that the extension of the borough for municipal purposes idid not give a wider mean- ing to the expression " town of Rochdale " so as to extend the market rights to the ex- tended borough ; and that the Improvement Act, 1872, did not extend the provisions of any local acts to the extended borough, but only applied all municipal and general acts relating to sanitary and local government matters in the old borough to the extended borough ; and they accordingly declined to convict the respondent of an offence within that section : — Held, on appeal therefrom, that the justices were wrong in not convicting the respondent, inasmuch as the Act of 1822 must have contemplated a growing town, and the expression " town of Rochdale" in s. 42 was intended to include not merely the then existing but the increasing town of coming years ; and that, under the Act of 1872, the provisions of the Act of 1822 apply to and are in force within the extended boundaries so as to make the "town of Rochdale" men- tioned in the earlier Act comprise, for all the purposes of that Act, the whole of the municipal borough as constituted bv the later Act of 1872. Killmister v. Fitton, 53 L. T. 959 — D. On what Days.] — Where by the term of a grant a market is to be held on specified days, no length of user will entitle the grantee to hold markets on other days. Attorney- General V. Horner, in C. A., supra. Disturbance — Alleged Pailore on part of Owners to provide adequate Accommodation.] — Failure on the part of the lord of a market to afford sufficient accommodation for the public is not a, defence to an action for disturbance by the setting up of a rival place of sale, although it is a defence to an action against a dealer who cannot find room in the market. In order to make a defendant liable to an action for dis- turbance of a market, it is not necessary to prove that he acted with the intention of defrauding the plaintiffs of their tolls by taking advantage of the concourse at their market. Great Eastern Railway v. Goldsmid. 9 App. Gas. 927 ; 54 L. J., Ch. 162 ; 62 L. T. 270 ; 33 W. E. 81 ; 49 J. P. 260— H. L. (E.). A charter was granted by Edw. 3, with the advice of his Parliament, to the city of London, conferring certain privileges on the citizens, and granting that no market should be held within 1181 MAEKET. 1182 seven miles of the city. A charter was granted by Car. 2, in 1662, to the plaintiff's predecessors in title, giving thera the right to hold a market "" in or next to S. Square," which was within seven miles of the city. User of the market was proved from 1723. The plaintiffs built houses at S. Square, and let many of them for purposes unconnected with the market, and there was ■evidence that the market was very crowded, that it was diflBcult for dealers to get stalls there, and that substantially the whole mai-ket area was let by the year, month, or week, leaving no space for the general public. The defendants, who were a railway company, established a depot or row of shops at their terminus, which was within ■300 yards of S. Square, and let them to dealers for the purpose of selling vegetables brought up by their railway ; the company also circulated their tenants' advertisements inviting consign- ments of produce ; no persons were allowed to sell «xcept the tenants of the shops. The plaintiffs brought an action to restrain the defendants from interfering with their market rights : — Held, that although the charter of Edw. 3 had "the force of an Act of Parliament, the corpora- tion of London might waive their rights as to ■establishment of markets, and that the court would presume that they consented to the charter of 1662. Held, also, that the depot of the de- fendants, although not technically a market, was n, disturbance of the plaintiffs' rights, and made them liable to an injunction ; and that •even if the plaintiffs' mode of conducting their market would preclude them from maintaining an action against a tenant of the defendants, yet it did not preclude them from bringing an action against the defendants to restrain them irom establishing a rival place of sale in the neighbourhood. Islington Market Cane (12 M. ■& W. 20, n.. 3 CI. & F. 513), and Prinoe v. Lewis <5 B. & G. 363), considered, lb. Illegal Tolls.]— Although the taking of tolls on an animal not sold may be illegal, unless such tolls are demanded as stallage, still the levying of them cannot form a justification for setting up a rival market. Midleton (^LorcT) T. Power, 19 h. R., Ir. 1— V. C. Prescribed Limits — Different days — Xiability of Persons taking part in Disturbing.] — Where there is a franchise right of holding fairs and markets, and of taking tolls in respect thereof, and an unauthorised fair or market is beld within a reasonable distance of the pre- scribed place, and within the ambit of the grant, and such fair or market is held on the same day as is prescribed by the grant for holding a fair or market, there is an actual intendment of law that there has been a disturbance. If, however, the injury arises from acts done outside the pre- scribed limit, or done on different days from those specified, a question of fact arises, and proof must be adduced of actual disturbance by the persons sought to be made liable, and of injury to the rights of the patentee. Every person who takes part in an illegal combination to disturb a franchise right of holding fairs, or who knowingly takes advantage of it, is guilty of disturbance. Downshire (_Marquis') v. O'Brien, 19 L. R., Ir. 380— V.-C. Injunction — Damages — Costs.] — In an action for disturbance of the plaintiff's fairs and markets, it appeared that a combination had been formed to set up rival fairs within the ambit of the plaintiff's grant, and in such a way as to disturb their franchise rights ; that the de- fendants were not parties to such combination, but that they sold at one of the rival fairs with a knowledge that they were infringing the plain- tiff's rights. The defendants, by their pleading and evidence in the action, denied the plaintiff's rights as claimed, and attempted to justify the holding of such rival fairs and the conduct of the originators of the combination : — Held, that they had contributed to the disturbance ; that they should be restrained by injunction ; that they should not be held liable in damages ; but that, having regard to the case made by them, they should pay the costs of the action. Semble, if the defendants had by their pleading admitted the plaintiff's rights, and shown that they were mere casual vendors, and that the part they took in the rival fairs was due to inadvert- ence, they would not have been condemned in costs. lb. Discontinuance — What is.] — Disuser of the fairground, in consequence of the illegal holding of rival fairs, does not constitute a discontinuance amounting to an abandonment of the patentee's right. li>. Forfeiture of Grant — Waiver.] — The prin- ciple laid down in the Islington MarUet Case (3 CI. & Fin. 513), that whilst the grant of a fair or market remains unrepealed, the default of finding proper accommodation for the public cannot operate in point of law as a ground of granting a new charter to another to hold a market within the common law distance, applies equally to other breaches of duty involving for- feiture of grant, such as holding a fair or market on days other than those appointed by the charter. The Crown only can take advantage of such a forfeiture. A forfeiture may be waived by the Crown as well as by private individuals, and such waiver may be proved by similar evi- dence, e.g., by the continued acceptance of the Crown rent. Midleton (_Lord} v. Power, 19 L. R., Ir. 1— V.-C. Waiver of Statutory Eights.] — A statute, or charter having the force of a statute, may be waived by the party for whose benefit it was enacted, so as to render the acts of persons disregarding it legal. Great Eastern Railway V. Ooldsmid, supra. Power to let Covered Portion of Market for other Purposes.] — By 37 & 38 Vict. c. Ixxxv., s. 8, the corporation of Edinburgh (who were grantees of a market in Edinburgh) " may cover in a suitable and convenient manner the fruit and vegetable market-place, and improve and better adapt the same for the purposes of such market, and for the accommodation of parties usiag the same, and of the public, &c. Pro- vided always that the ground floor only of such market-place shall be used for such fruit and vegetable market, and that all vacant portions of such market-place, whether on the ground floor or above the same, and all vacant and unlet stands, stalls, or shops in or on such market- place may be let or used by the corporation for such purposes and for such rents or sales as to them shall seem proper :"— Held, that the cor- 1183 MAEKET. 1184 poration were not entitled to exclude members of the public from the covered portion of the market during market hours and devote the building to other purposes. Edinburgh Magis- trates V. BlacUe, 11 App. Cas. 665— H. L. (Sc). Change of Site — Adequacy of Accommoda- tion.] — Per Lord Watson : — When a grant of market is not confined to any particular locality, the grantee may from time to time change the site in order to suit his own convenience ; but it is an implied condition of the exclusive privilege that he shall provide a market-place, and that implied condition is satisfied so long as he gives reasonable accommodation to those members of the public who use the market either as buyers or sellers, and the extent of the accommodation which must be afforded in each case must vary with the circumstances. li. The patentees of fairs are justified in removing them to any place within the precinct of their grant ; and if the accommodation provided by them is inadequate, or the change so injurious as to amount to an abuse of the franchise, the remedy of those injured is not the setting up of a rival affair. If such a change is productive of public injury, the remedy must be with the Crown, who can proceed by indictment or scire facias to repeal the patent ; if productive of pri- vate injury, the party injured must resort to his action. Midleton {Lord,') v. Power, supra. Tolls — In what Cases payable.] — A green- grocer, within the limits of the T. market, used to order vegetables from B., a farmer, outside the limits, and paid monthly. B. was charged with selling marketable goods without paying toll : — Held, that B. was liable to pay the tolls.. Torquay Marltet Company v. Burridge, 48 J. P. 71— D. By a local act, 15 Vict. c. civ., for the establish- ment and regulation of markets in the borough of L., it was provided that, after the opening of the market places, every person (with certain specified exceptions) who should sell within the limits of the act, other than in some one of the market places, private legal markets, or in his own dwelling-house, shop, warehouse, yard, or store, anything whatever in respect of which tolls were by the act authorised to be taken, should be subject to a penalty. Milk was not one of the articles specified in the act as subject to tolls ; but by a subsequent amending act, 25 Vict. c. 23, the bailiffs and servants of the trus- tees of the markets were authorised to remove to the markets any articles, and, inter alia, milk, illegally exposed for sale in any street or public thoroughfare within the limits of the former act, and by a further amending act (.S5 & 36 Vict. c. 96), it was provided that it should be lawful for the trustees, if they should think fit, to de- mand and receive in respect of certain enumerated articles, and, inter alia, milk, exposed or offered for sale in any of the market places provided by the trustees, certain tolls specified in the schedule to the act. In ,1882, the trustees issued a public notice that, for the future, tolls should be paid on all cans, tankards, or other vessels of milk, whether sold from door to door, or otherwise, and whether taken to the market ornot. The market trustees contended that they were entitled to toll upon milk within the market limits, and sum- moned the appellant for so selling milk without payment of toll, and the local bench of magis- trates imposed upon the appellant a pecuniary fine, or in default, imprisonment : — Held, on a case stated, that, under the acts regulating the markets, the trustees were not entitled to levy toll on milk not sold in one of the market places, but sold, as by the appellant, at the dwellings of customers ; and that a person delivering milk to customers at their doors, was not liable to a penalty. Quilligan v. Limerick Marltet Trustees, U L. E., Ir. 265— Q. B. D. Begulation Bye-law — Distinction between Wholesale and Betail Trades.] — A bye-law for the regulation of a market, setting apart different places for the carrying on of wholesale and retail trade, is not unreasonable as being in re- straint of trade. Strike v. Collins. 55 L. T. 182 ; 34: W. E. 459 ; 50 J. P. 741— D. Selling within limits — Potatoes — "Provi- sions."] — The Taunton Market Act prohibited the selling within certain limits of the market, com, grain, fish, meat, poultry, or other provisions, or any bulls, sheep, swine, or other live cattle, which are usually sold in public markets : — Held, that a shopkeeper selling potatoes came within the statute, these being " provisions," and also " usually sold within markets." Shep- herd v. Folland, 49 J. P. 165— D. Power of District Board to erect Posts — Interference with Market,] — A district board of works, under the statutory powers conferred by 57 Geo. 3, c. 29, s. 58, and 18 & 19 Vict. c. 120, s. 108, threatened to erect posts by the side of public footpaths along the public roads leading into the area of Spitalfields Market, in order to preserve the rights of the public and to insure the safety of foot-passengers. It was proved that this would seriously interfere with the access to the market, which had been recently enlarged by throwing into it the site of houses which had been pulled down belonging to the plaintiff : — Held, that such an exercise of the board's powers would be an interference with the " rights and privileges vested in the plaintiff in reference to a market " within the exception contained in 18 & 19 Vict. c. 120, s. 91, and an injunction was granted restraining the proposed action of the board. Somer v. WhUecJiapel Board of Works, 55 L. J., Ch. 289 ; 53 L. T. 842— C. A. Sale in Market Overt— Liability of Public Sales-Master — Stolen Goods.]— The defendants were public sales-masters, and transacted their business in a legally established cattle market, where a, market overt for the sale of cattle and sheep was held once a week. A number of sheep, which had been stolen from the plaintiff, were brought on a market day to the stand of the defendants by the thief, who employed the defendants to sell the sheep for him. The de- fendants, in ignorance of the theft, placed the sheep in their stand, and sold and delivered them to a purchaser, by whom they were re- moved : — Held, that the defendants were liable to the plaintiff in an action of trover for the value of the sheep. Delaney v. WalUs, 13 L. K., Ir. 31 ; 15 Cox, C. C. 525— C. A. Contract induced by Traud — Conviction. of Fraudulent Buyer— Eevesting of Property.] — The owner of goods, induced by fraud, parted 1185 MASTER AND SERVANT. 1186 with them under a voluntary contract of sale which vested the property in the fraudulent purchasers. The goods were then sold in market overt to a purchaser without notice of the fraud. The fraudulent purchasers were afterwards, upon the prosecution of the original owner, convicted of obtaining the goods by false pretences. The judge before whom the prisonere were tried re- fused to make an order of restitution : — Held, that under 24 & 25 Vict. c. 96, s. 100, the pro- perty in the goods revested in the original owner upon conviction, and that he was entitled to recover them from the innocent purchaser. Moyce v. Newington (4 Q. B. D. 32) overruled. Bentley v. Vilmont, 12 App. Cas. 471 ; 57 L. .1.. Q. B 18 ; 57 L. T. 854 ; 36 W. R. 481 ; 52 J. P. 68— H. L. (E.). MARKET OVERT. See supra. MARRIAGE. See HUSBAND AND WIFE. MARTIAL LAW. See AEMY AND NAVY. MASTER. Shipping.]— &« Shipping. Taxing.]— &e Costs— Solicitob. Of High Court.]— &e Appeal— Pbacticb. MASTER AND SERVANT. 1. Bights and Liabilities of Masteb and Seevant. 1. Tite Covtraot of Hiring. a. Wages and Eemuneration, 1186. J. Termination of— Wrongful dismis- sal, 1187. e. Other Eights under the Contract, 1189. 2. Injuries to Servant in course of Employ- ment, a. At Common Law, 1189. i. Employers' Liability Act. i. Workman— Who is, 1190. ii. Notice of Injury, 1191. iii. Acts of what Servants, 1192. iv. In respect of what Plant, Works, &c., 1193. V. Effect of Contributory Negli- gence, 1196. vi. Kisk voluntarily incurred, 1197. vii. Practice, 1198. II. Liability op Mastee to thied Peesons, 1198. 1. EIGHTS AND LIABILITIES OF MASTER AND SERVANT. 1. The Conteact of Hieing. a. Wagres and Semuueration. Payment — Deductions— Truck Act.] — By an arrangement between employers and their workmen, certain deductions were made from the workmen's wages (which were paid monthly) for a doctor's fund, which was established for the purpose of paying doctors, who attended the workmen and their families, and supplied them with medicines in case of illness. The sums thus deducted were handed over by the em- ployers to the doctor from time to time. There was no contract in writing between the employers and workmen, authorising the employers to make the deductions, nor was there any evidence that the doctor had accepted the liability of the em- ployers. The employers filed a liquidation peti- tion, and at this time there stood to the credit of the "doctor's fund," in their books, a sum of 149Z., which had arisen from deductions thus made from the workmen's wages, and had not yet been paid over to the doctor : — Held, that there had been no valid payment within the Truck Act, of the 149i!. to the workmen, and that they were entitled to be paid the 149Z. in full out of the employers' estate as wages. Cooper, Ex paHe, Morris, In re, 26 Ch. D. 693 ; 51 L. T. 374— C. A. Quaere, whether, if the 149Z. had been, in pur- suance of the agreement, actually paid over by the employers to the, doctor, in discharge of a debt for which the workmen were liable, or if the doctor had accepted the liability of the employers, the Truck Act would have applied notwith- standing the absence of a contract in writing, signed by the workmen. lb. Forfeiture — Servant Absenting himself.] — T. was employed by A., a cutton-spinner, at a weekly wage of \as., ending on Wednesdays ; the rules stated that a workman absenting himself would forfeit his wages. On Tuesday morning at 6 a.m., T. was late, and being refused entrance, said be would leave for the day, and went away. After breakfast he came again and went in unobserved, till, being noticed by the overlooker, he was told his work had been dis- tribed, and T. went away again. On suing for the week's wages : — Held, that the county court judge was wrong in finding tihat T. had not- QQ 1187 MASTER AND SERVANT. 1188 absented himself on those facts, and therefore T. could not recover his wages. Tomlinson v. Ash- worth, 50 J. P. 161— D. Absence through Illness.] — P. was by deed apprenticed in 1881 for seven years to W., and in the fifth year W. covenanted to pay Us. a vfeek. In that year P. had a tumour in his hand and vras in hospital ; he claimed vcages vyhile so absent and incapable of work under s. 5 of the Employers and Workmen Act, 1875 : — Held, that W. was liable to pay the wages during the illness of P. Patten v. Wood, 51 J. P. 549— D. Yearly Salary payable Quarterly — Dis- missal — Part accrued Due.J^Previous to the registration of a company. A., as trustee for the company, entered into an agreement with B., by which, amongst other things, it was agreed that he should be managing director of the com- pany when formed, with a salary* at the rate of 8001. per annum. The articles of association provided that B. should be the first managing director of the company, and that his salary should be 8001. per annum, payable quarterly. B. afterwards entered into an agreement with the company, by which, after reciting the former agreement with A., the company adopted the former agreement, and it was agreed that it should " be binding on the company in the same manner, and be read and construed in all respects as if the company had been in existence at the date thereof, and had by these presents ratified the same" : — Held, that the salary being under the agreement payable annually, B. was not entitled to the salary for the quarter which had accrued due previous to his dismissal for misconduct, as the article was an agreement only between the shareholders and the com- pany, and regulated the way in which the payment should be made, and the way in which the accounts should be kept. JBoston Deep Sea Fishing Company v. Ansell, 39 Ch. D. 339 ; 59 L. T. 345—0. A. In Mines.] — See Mines and Minerals. b. Termination of — Wroug-ful Dismissal. Length of Notice— Telegraph Clerk.] — A sta- tionery clerk in a telegraph office, at a salary of 135Z. per annum, is entitled to a month's notice. Viiert v. Eastern Telegraph Company, 1 C. & E. 17 — cor. Stephen, J. Dismissal, Grounds for — Beceipt of Commis- sion.] — Charges of misconduct having been made against a managing director of a company, he was dismissed, and an action was commenced against him by the company, alleging the mis- conduct, and claiming damages and certain accounts. The defendant counter-claimed for damages for wrongful dismissal. At the trial of the action the company failed to prove the original charges, but proved that he had received a commission from a firm of shipbuilders on the price of some ships built for the company. This was only discovered after the commencement of the action. It appeared that he had super- intended the building of the ships, and given advice concerning their construction : — Held, that the receipt of the commission entitled the company to dismiss him, and they were there- fore not liable for damages, though they had dis- missed him on other grounds which they had failed to prove, and the commission had been received some time before his dismissal, and was an isolated case of misconduct. Boston Deep Sea Mshing Company v. Ansell, 39 Ch. D. 339 ; 59 L. T. 345— C. A. Misconduct — Gambling in " Differences" upon Stock Exchange.] —The plaintiff had been employed as clerk for many years by the defen- dants, who were merchants, and ultimately they agreed to retain him in their employment for a term of ten years. Before the expiration of that period the defendants discovered that the plaintiff had for many years previously been engaged in speculating in " differences " upon the Stock Exchange to the extent of many hundreds of thousands of pounds, and they thereupon dismissed him from their service : — Held, that the dismissal of the plaintiff was justifiable. Pearce v. Foster, 17 Q. B. D. 536 ; 55 L. J., Q. B. 306 ; 54 L. T. 664 ; 34 W. R. 602 ; 51 J. P. 213— C. A. Discharge when in Employ of Company — Appointment of Manager and Beceiver.] — The plaintiff was in the service of the defendant company under a contract which provided that his employment might be determined by six months' notice. A manager and receiver was appointed by order of the Chancery Division at the instance of holders of debentures of the com- pany. The plaintiff, by the instructions of the manager, continued for more than six months to discharge his former duties at the same salary. The business was then sold to a new company, and the plaintiff was dismissed without notice. In an action for wrongful dismissal : — Held, that the appointment of a manager and receiver operated to discharge the servants of the company and that the plaintiff could not recover. Fieid V. Fxplosiees Company, 19 Q. B. D. 264 ; 56 L. J., Q. B. 388 ; 57 L. T. 439 ; 35 W. R. 509— C. A. Resolution to wind up.] — The passing of a resolution to wind up a company operates as notice of dismissal to the company's servants. Circumstances may exist which would amount to a waiver of such implied notice, or which would be evidence of a new agreement between the liquidator and the servant ; but clear and satis- factory evidence is necessary to establish such a case. Schumann, Ex parte, Forster ^ Co., In re, 19 L. R., Ir. 240— V.-C. Order for Winding up.] — The rule that an order for vrinding up ■& company operates as a notice of discharge to the servants when the business of the company is not continued after the date of the order, applies though the liquida- tor without continuing the business employs the servants in analogous duties with a view to reconstruction. Chapman's Case (1 L. R., Eq. 346) followed; Harding, Ex parte (3L. R., Eq. 341), distinguished. Oriental Bank Corporation, In re, MacDowalVs Case, 32 Ch. D. 366 ; 65 L. J., Ch. 620 ; 54 L. T. 667 ; 34 W. R. 529— Chitty, J. Damages for Wrongful Dismissal.]— Only nominal damages are recoverable for breach by the employer of a contract of hiring, if the person hired could have at once obtained other employ- 1189 MASTEE AND SEEVANT. 1190 ment of a precisely similar kind, which a reason- able man would have accepted. Macdorinell v. Marsden, 1 C. & E. 281— Mathew, J. c. Other rig-hts under the Contract. Servant must Acoonnt to Master for Bonuses xecelved.] — The managing director was before the formation of the plaintiff company a share- holder in two other companies, and in consequence of employing them to supply ice to the plaintiff company's ships, and to take away the fish from them, he received from those companies certain bonuses paid out of surplus profits after payment of dividends at a fixed rate. Under an agreement with the company he was allowed to engage in any other business or venture not prejudicial to the interests of the company, and the articles provided that the directors might enter into oontracts, and do business with the company : — Held, that he must account to the plaintiff company for the bonuses, though the plaintiff company could not have obtained them from the other companies. Boston Deep Sea FUTiing Company v. Ansell, supra. Written Character defaced by Master.] — In an action for maliciously defacing the written character of a servant by writing upon it a dis- paraging statement, the plaintiff may recover substantial damages. Wermhah v. Morgan, 20 Q. B. D. 635 ; 57 L. J., Q. B. 241 ; 59 L. T. 28 56 W. E. 697 ; 52 J. P. 470— D. 2. INJUEIBS TO SeKVANT IN COURSE OF Employment. a. At Common Law. Unsafe Premises — Knowledge of Master and Servant.] — In an action of negligence brought by a servant against his master for personal injury resulting from the unsafe state of the premises upon which the servant was employed, the statement of claim must allege not only that the master knew, but that the servant was ignorant of the danger. Griffithsv. Lofidon and St. Katlw- rine Doek Company, 13 Q. B. D. 259 ; 53 L. J., Q. B. 504 ; 51 L. T. 533 ; 33 W. E. 35 ; 49 J. P. 100 — C. A. Fellow Servant — ^Hiring Another's Servant.] — A stevedore contracted to load a ship and hired an engine from P., who sent his servant N. to work it. M., a servant of the stevedore, gave the signals to N., and by N.'s negligence a sack fell and killed M. The wages of M. were paid by P. : — Held, that N. was the servant of P., and that P. was liable to M.'s representatives for compensation. Moore v. Palmer, 51 J. P. 196 — C. A. The plaintiff, employed as foreman of a steve dore to unload a ship with the assistance of the crew, was injured by the negligence of one of the crew in the quasi-employment of the stevedore : — Held, that the shipowners were not liable. " 'V. Adams, 32 W. E. 430— D. Steamer — Condition of Erear — Evidence of Neg- ligence.] — H., while in the employment of the defendant company as a second mate onboard one of their steamers, sustained injuries, resulting in his death, from the fall of a derrick while the vessel was discharging cargo. At the time the accident occurred the derrick was, in accordance with the usual custom on the vessel, and for the discharge of the cargo, being hoisted from the deck to its proper place in the mast by a rope which worked through an iron bolt fixed in a trestle-tree. The greater part of the bolt was concealed and could not be examined without being drawn out of the trestle-tree. The bolt broke while the derrick was being hoisted, and it fell upon H. In an action by H.'s widow, und«ir Lord Campbell's Act, it was proved that the bolt, to the extent of two-thirds of its thickness, was in a defective state and incapable of bearing a strain, and it was the common case of both parties that there was no skilled person on board whose duty it was to examine the screws and bolts. It was not shown that the defendants or their officers were in fact aware of the defective condition of the bolt, and no evidence was given as to the usual practice of inspection of vessels of the class, or for what time a bolt of the kind in question would in the ordinary course remain in repair and adequate to its work : — Held, that there was no evidence of negligence on the part of the defendant company, and that the judge at the trial was right in directing a verdict for them. Bwnrahan v. Ardnamult Steamship Company, 22 L. E., Ir. 55— Ex. D. b. Employers' Iiiability Act. i. Workman — Who is. " Person engaged in Manual Labour " — Driver of Tramoar.] — The driver of a tramcar is not " a person to whom the Employers and Workmen Act, 1875, applies," and therefore is not entitled to the benefit of the Employers' Liability Act, 1880. Cook v. North Metropolitan Tramways Company, 18 Q. B. D. 683 ; 56 L. J., Q. B. 309 ; 56 L. T. 448 ; 57 L. T. 476 j 35 W. E. 577 ; 51 J. P. 630— D. Omnibus Conductor.] — ^An omnibus con- ductor is not a " workman " or person " engaged in manual labour " within the meaning of s. 10 of the Employers and Workmen Act, 1875, and therefore is not entitled to the benefit of the Employers' Liability Act, 1880. Morgan v. London General Ommilns Company, 13 Q. B. D. 832 ; 53 L. J., Q. B. 352 ; 51 L. T. 213 ; 32 W. E. 759 ; 48 J. P. 503— C. A. Driver of Cart.] — The driver of a cart in the employment of a wharfinger who, for the purposes of his business, is the owner of carts and horses, is a " workman " within the act. Yarmouthy. France, 19 Q. B. D. 647 ; 57 L. J., Q. B. 7 ; 36 W. E. 281— D. " Workman."] — By an agreement in writing between H. & Co., manufacturers, and J., re- citing that J. having a knowledge of mechanics, and H. & Co. requiring the services of a person having such knowledge " to assist the firm as a practical working mechanic in developing ideas they (the firm) might wish to carry out, and to himself originate and carry out ideas and inven- tions suitable to the business of such firm, if such inventions were approved by them," it was mutually agreed that J. should be employed by Q Q 2 1191 MASTER AND SERVANT. 1192 the firm " for the purpose above specified " : — Held, that J. was not " a mechanic or workman " within the Employers and Workmen Act, 1875. Jachson v. Sill, 13 Q. B. D. 618; 49 J. P. 118— D. J. agreed with H., a frilling manufacturer, to serve for seven years at 51. per week during the ordinary hours. He was described in the agree- ment as having a knowledge of mechanics, and to assist as a practical working mechanic in developing ideas. He in fact drew designs and had workmen to assist in carrying them out : — Held, that J. was a workman within the meaning of the Employers and Workmen Act, 1875. Jaclison V. Hill, 48 J. P. 7— D. Workman employed by "butty" Men — Lia- bility of Owners of Mine.] — The defendants were owners of a coal mine worked under the " butty " system. In mines so worked " butty " men contract with the owners of the mine to bring coal up at so much per ton, and for this purpose employ men under them. The deceased had been so employed, and had been killed by an explosion while working in the mine : — Held, that the deceased had been a workman in the employ of the owners of the mine within the meaning of the Employers' Liability Act, 1880, and that his wife would be entitled to damages if the case came within the terms of sub-s. 3 of 8. 1 of that act. Brown v. Butterley Coal Company, 53 L. T. 964 ; 50 J. P. 230— D. ii. Notice of Injury. Omission of Date of Injury.] — Sect. 4 of the Employers' Liability Act, 1880, provides that an action to recover compensation under the act shall not be maintainable unless notice of injury is given as provided by the act. By s. 7, the notice shall state (inter alia) the dale of the in- jury ; and " a notice under this section shall not be deemed invalid by reason of any defect or inaccuracy therein " unless the judge who tries the action shall be of opinion that the defendant is prejudiced in his defence by such defect or in- accuracy, and that it was for the purpose of misleading. A notice of injury given under s. 4 omitted to state the date of the injury, and the judge at the trial found that the defendant was not prejudiced in his defence by the omission, and that it was not for the purpose of mis- leading : — Held, that the omission of the date was a " defect or inaccuracy " in the notice within the meaning of s. 7, and therefore did not render the notice invalid. Carter v. Drys- dale, 12 Q. B. D. 91 ; 53 L. J.. Q. B. 557 ; 32 W. R. 171— D. Omission of Address and Sate.] — It is not a fatal objection to an action brought by a servant under the Employers' Liability Act, 1880, against his employer to omit the address and date in the notice required to be given to the employer under s. 7. Beckett v. Manchester Corporation, 52 J. P. 346— D. Omission to state Address and Cause of In- jury — Wrong Date — Notice served by Letter not Segistered.] — A notice given to an em- ployer under ss. 4 and 7 of the Employers' Lia- bility Act, 1880, omitted to give the address of the person injured, or to state the cause of the injury, and the date at which the injury waa sustained was wrongly given. The accident occurred on the 9th August. The letter giving notice was served on the defendants by post by an unregistered letter on the 19th September, and to this letter the defendants replied on the 23rd September. The county court judge, before whom the action was tried, found that the de- fendants had not been prejudiced in their defence by the defects and inaccuracy in the notice, and that such defects and inaccuracy were not for the purpose of misleading. It was proved that the notice was posted on the 19th September : — Held, that the county court judge having found that the defendants were not pre- judiced in their defence by the said defects and inaccuracy in the notice, and that they were not for the purpose of misleading, the notice was good within the meaning of ss. 4 and 7 of the Employers' Liability Act, 1880. Held also, that it having been proved that the letter con- taining the notice was posted on the 19th Sep- tember, and a reply to it having been received from the defendants, there was sufficient evi- dence that the notice had been received by the defendants within the time specified in s. 4 of the act, although the letter containing the notice was not registered. Previdi v. Gatti, 58 L. T. 762 ; 36 W. B. 670 ; 52 J. P. 646— D. iii. Acts of what Servants. " Person intrusted with Superintendence."] — In an action to recover compensation under the Employers' Liability Act, 1880, it appeared that the plaintiff, with other workmen, was employed by the defendant to stow bales of wool in the hold of a ship. The workmen were divided into gangs, the foreman of the plaintiff's gang being B. B. was himself a labourer, working on deck, and he gave the signal to the men below when the bales were being dropped down the hatch- way into the hold. The plaintiff, who was below, was injured by a bale which, according to his statement, was dropped down without sufficient warning being given by B. to enable him to get out of the way : — Held, that the plaintiff was not entitled to recover, as B. was not a person who had superintendence intrusted to him within s. 1, sub-s. 2, as defined by s. 8, nor was there any evidence that the injury re- sulted from the plaintiff having conformed to any order of B. within s. 1, sub-s. 3, assuming that B. was a person to whose orders the plaintiff was bound to conform. Kellard v. RooTie, 21 Q. B. D. 367 ; 57 L. J., Q. B. 599 ; 36 W. B. 875 ; 52 J. P. 820— C. A. An employer may be liable under s. 1 of the Employers' Liability Act, 1880, where personal injury is caused to a workman, within s. 2, " by reason of the negligence of any person in the service of the employer who has any superinten- dence entrusted to him whilst in the exercise of such superintendence," although the superinten- dent, when negligent, is voluntarily assisting in manual labour ; the superintendent need not of necessity have actual superintendence over the workman injured. Ray v. Wallis, 51 J. P. 519 — D. " Person to whose Orders Plaintiff bound to conform."]— The 1st section of the Employers' Liability Act, 1880, provides that where personal 1193 MASTER AND SERVANT. 1194 injury is caused to a workman (3) by reason of the negligence of any person in the service of the employer to whose orders or directions the work- man at the time of the injury was bound to con- form, and did conform, where such injury resulted from his having so conformed, the workman, or, in case the injury results in death, his legal per- sonal representatives, shall have the same right of compensation against the employer as if the workman had not been a workman of nor in the service of the employer nor engaged in his work. The plaintiff, a boy employed by the defendants, a railway company, was assisting a carman of the defendants, under whose directions he was, in unloading from a van three large iron window frames. The fi-ames were standing upright in the van, secured at each end to the hoops of the van by a string. The carman untied the string at one end of the frames, and the plaintiff untied the string at the other end. The carman did not expressly order the plaintiff to untie the string, but the plaintiff stated that he did so without orders because he had done so on previous occa- sions, and that the carman saw him untie the string and made no objection. The carman then removed one of the frames without retying the two remaining frames, leaving them standing unsecured. They directly afterwards fell on the plaintiff, causing him injuries in respect of which he sued the defendants for compensation jinder the Employers' Liability Act, 1880 : — Held, that there was on the above facts evidence of an injury to the plaintiff by reason of the negligence of a fellow-workman to whose orders he was bound to conform, and did conform, and which resulted from his having so conformed. MUlward v. Midland Railway, Xi Q. B. D. 68 ; 54 L. J., Q. B. 202 ; 52 L. T. 255 ; 33 W. R. 366 ; 49 J. P. 453 — D. And see Eellard v. Roohe, supra. Person having " Charge or Control " of Points.] — In an action for compensation under the Em- ployers' Liability Act, 1880, the evidence showed that it was the duty of F., a workman employed in the signal department of the defendants' railway, to clean, oil, and adjust the points and wires of the locking apparatus at various places along a portion of the line, and to do slight repairs ; that for these purposes he was, with several other men, subject to the orders of an inspector in the same department, who was re- sponsible for the points and locking gear, which were moved and worked by men in the signal boxes, being kept in proper condition ; and that F. having taken the cover off some points and locking gear, in order to oil them, negligently left it projecting over the metals of the line, whereby injury was caused to a fellow- workman : — Held, that there was no evidence for the jury that F. had " charge or control " of the points within the meaning of s. 1, sub-s. 5 of the Em- ployers' Liability Act, 1880, so as to make the defendants liable for his negligence. Gihhs v. Great Western Railway, 12 Q. B. D. 208 ; 53 L. J., Q. B. 543 ; 50 L. T. 7 ; 32 W. R. 329 ; 48 J. P. 230— C. A. iv. In respect of what Plant, Works, Ifc. " Hallway," what is.] — The meaning of the term " railway " as used in the 5th sub-section cf the 1st section of the Employers' Liability Act, 1880, is not confined to railways belonging to railway companies such as are subject to the provisions of the Railway Regulation Acts ; but the sub-section applies to a temporary railway laid down by a contractor for the purposes of the construction of works. Doughty v. Mrhamlh, 10 Q. B. D. 358 ; 52 L. J., Q. B. 480 ; 48 L. T. 530 ; 48 J. P. 55— D. " Locomotive Engine " — Steam Crane fixed on a Trolly.] — A steam crane fixed on a trolly, and propelled by steam along a set of rails when it is desired to move it, is not a " locomotive engine " within the Employers' Liability Act, 1880 (43 & 44 Vict. c. 42), s. 1, sub-s. 5. Mv/rphy v. Wilson, 52 L. J., Q. B. 524 ; 48 L. T. 788 ; 47 J. P. 565 ; 48 J. P. 24— D. " Condition of the Way."] — During the building of a house the workmen obtained access to the upper part by ladders placed in a well intended for a staircase. There was another well through the house intended for a lift, down which rubbish had been thrown during the building. Upon the staircase being completed, it was closed to the workmen as a means of access, and the ladders were transferred to the Uft-well. No precautions had been taken to prevent workmen from throwing rubbish down the lift-well after the ladders had been so trans- ferred. The plaintiff was ascending one of the ladders when a boy threw a plank down from the third floor which struck the plaintiff and broke his collar-bone : — Held, that this was not a '■ defect in the condition of the way " within the meaning of sub-s. 1 of s, 1 of the act ; and that the fact of no notice or warning being given to stop the practice of throwing materials down the lift-hole did not have the effect of bringing the case within that sub-section. Fegram v. Diaion, 55 L. J., Q. B. 447 : 51 J. P. 198— D. "Works" — ^Wall.in course of Construction.] —In the Employers' Liability Act, 1880 (43 & 44 Vict. c. 42), s. 1 — defining the liability of employers for personal injury caused to their workmen (1) " by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer " — the expression " works " must be taken to mean works already completed, and not works in course of construction, which are on completion to be connected with or used in the business of the employer. Howe v. Ii'inoJi, 17 Q. B. D. 187 ; 34 W. R. 593 ; 51 J. P. 276 — D. " Condition of Plant."] — The Employers' Liability Act, 1880, which gives a workman a right of action against his employer for personal injury by reason of any defect in the condition of the plant used in the business of the em- ployer, applies to a case where the plant is unfit for the purpose for which it is used, though no part of it is shown to be unsound. Plaintiff, a workman in defendants' employment, was injured by reason of the breaking of a ladder, which was being used to support a scaffold. The ladder was insufficient for the purpose for which it was being used, and the scaffold and ladder had been placed and were being used under the directions of one of the defendants :— Held, that, under the above circumstances, there was evidence that the 1195 MASTER AND SERVANT. 1196 plaintiff liad been injured by reason of a defect in the condition of the plant, owing to the negligence of his employer, within the meaning of the Employers' Liability Act, 1880. Cripps T. Jvdge, 13 Q. B. D. 583 ; 53 L. J., Q. B. 517 ; 51 L. T. 182 ; 33 W. R. 35 ; 49 J. P. 100— C. A. A wharfinger who for the purposes of his business was the owner of carts and horses, owned one horse of a vicious nature, that was unfit to be driven by a careful driver. The plaintiff was in the wharfinger's employ and had to drive the carts and to load and unload the goods carried in them. In an action for injury by reason of the viciousness of the horse : — Held, that the horse was " plant " used in the business of the wharfinger, and that the vice in the horse was a " defect " in the condition of such plant within the meaning of section 1 of the act. Yarmouth v. France, 19 Q. B. D. 647 ; 57 L. J:, Q. B. 7 ; 36 W. K. 281— D. See aUo WeUin V. Ballard, post, col. 1197. "Condition of Machinery" — Dangerous Ma- cliine.] — The mere fact that a machine is danger- ous to a workman employed to work with it does not show that there is a defect in the condition of the machine within the meaning of the Employers' Liability Act, 1880, s. 1, sub-s. 1, inasmuch as by s. 2, sub-s. 1, of the act the only defects in respect of which the employer is liable are defects implying negligence of the employer or some one in his service entrusted by him with the duty of seeing that the machine is in proper condition. Walsh V. Whiteley, 21 Q. B. D. 371 ; 57 L. J., Q. B. 586 ; 36 W. B. 876 ; 53 J. P. 38— C. A. The plaintiff in an action under the Employers' Liability Act, 1880, was employed by the defen- dants to work at a carding machine. Part of the machine consisted of a wheel or pulley upon which, while in motion, the plaintiff had to place a band. The disc of the wheel had holes in it, and, while the plaintiff was putting on the band, his thumb slipped through one of these holes, the result being that it was caught be^ tween the wheel and the bed-plate of the machine and cut off. It was proved that, though these wheels were sometimes made without such holes, they were very commonly made with them, the object being to reduce the weight of the wheel and consequent friction. In the de- fendants' mill there were machines of both sorts, and it did not appear that any complaint had previously arisen with regard to the wheels with holes, the plaintiff himself stating that he had never complained of the machine because it had never entered into his head that it was dangerous : — Held, (Lord Esher, M.K.. dissent- ing), that there was no evidence of any defect in the machine implying negligence in the defendants or any one in their service, and therefore that the defendants were not liable. lb. The Employers' Liability Act, 1880 (43 & 44 Vict, c. 42), which gives a workman a right of action against his employer for personal injury by reason of any defect in the con- dition of the machinery used in the business of the employer, applies to a case where the machine, though not defective in its construction was, under the circumstances in which it was used, calculated to cause injury to those using it. The deceased, a workman in the employment of the defendants, was killed by a piece of coke falling from a lift used at a blast furnace belonging to them. I'he lift consisted of two platforms which ascended and de- scended alternately, and at the time when the deceased was injured he was removing empty barrows from the platform which was at rest at the bottom of the lift. There was evidence that the accident arose either from the sides of the lift not being fenced so as to prevent coke from fall- ing over, or from the lower platform not being roofed so as to protect those working on it from falling coke : — Held, that under the circum- stances there was a " defect in the condition " of the lift for which the defendants were liable. Seshe v. SamueUon, 12 Q. B. D. 30 ; 53 L. J.,. Q. B. 45 ; 49 L. T. 474— D. The plaintiff, a lad of nineteen, was employed in the defendants' paper mill at a machine for cutting jute. The material passed under a roller which conveyed it to the cutter ; but the roller being in several pieces or sections, with interstices between them into which the jute sometimes got, and so impeded the action of the machine, it was necessary (or usual) to remove it by the hand. In doing this the plaintiff lost three fingers. The defect had been pointed out to the 'defendants, who, to remedy it, procured a roller in one piece ; but the accident happened before the new roUer was placed. The maker swore that with care both rollers were equally safe. The jury having found that the injury to the plaintiff was caused by a defect in the machine known to the defen- dants, and not remedied by them : — Held, that this finding was warranted by the evidence. Paley v. Garnett, 16 Q. B. D. 52 ; 34 W. R. 295 ; 50 J. P. 469— D. V. Effect of Contributory Negligence. As a Defence.] — A defence of contributory negligence may be relied on in an action under the Employers' Liability Act. McEvoyv. Water- ford Steamship Company, 18 L. R., Ir. 159 — Ex. D. Knowledge of Defect.] — An employer, when sued under the Employers' Liability Act, 1880, for personal injury to a workman caused by any of the matters mentioned in s. 1 of the act, can- not avail himself of the defence that the injury was caused by the negligence of a fellow servant, or that the workman had contracted to take upon himself the risks incident to the employ- ment ; but he may avail himself of the defence of contributory negligence on the part of the workman, and also, under s. 2, sub-s. 3, of his failure to give notice of the defect or negligence which caused the injury. The deceased was employed as fireman at the defendant's brewery. In the engine-room, at some distance from the floor, was a valve to turn on steam to a donkey- engine. This valve was only reached by means of a ladder placed against a lower pipe, but, by reason of a bend in the last-mentioned pipe, the ladder (though in itself perfect), being without hooks or stays, was unsafe for the purpose for which it was used. The defendant had himself seen the ladder so used. The deceased was found dead in the engine-room, having been apparently killed by the ladder slipping while he was upon it. In an action by his personal representative under the Employers' Liability Act, the county court judge found that there was a defect in the condition of the plant within the meaning of s. 1, sub-s. 1, of the act, and that, although thfe 1197 MASTER AND SERVANT. 1198 deceased knew of the defect, he was excused fi'om informing the defendant of it, because he was aware that the latter knew of it : — Held, that this finding was warranted by the evidence, and that contributory negligence on the part of the deceased was not necessarily proved by the mere fact that he knew that the work was of itself dangerous. Weblin v. Ballard, 17 Q. B. D. 122 ; 55 L. J., Q. B. 395 ; 54 L. T. 532 ; 34 W. R. 455 ; 50 J. P. 597— D. Where a waggon was in a defective state, of which a workman was aware, and he used it in such a way as to cause injury to himself, when he knew how to use and might have used it so as not to cause injury to himself, he cannot recover under the Employers' Liability Act, 1880, s. 1. Martin v. Connah's Quay Alkali Company, 33 W. E. 216— D. vi. Risk voluntarily Inourred. " Volenti non fit injuria."] — The plaintiff was employed in a cooling room in the defendant's brewery. In the room were a boiling vat and a cooling vat, and between them ran a passage which was in part only three feet wide. The cooling vat had a rim raised sixteen inches above the level of the passage, but it was not fenced or railed in. The plaintiff went along this passage to pull a board from under the boiling vat. This board stuck fast and then came away suddenly, so that he fell back into the cooling vat and was scalded. In an action under the Employers' Liability Act, 1880 : — Held (Lord Esher, M.R., dissenting), that the defence arising from the maxim volenti non fit injuria had not been affected by the Employers' Liability Act, 1880, and applied to the present case, and that there was therefore no evidence of negligence arising from a breach of duty on the part of the defendant towards the plaintiff, and that the plaintiff was not entitled to recover. Thomas v. QiMHermaine, 18 Q. B. D. 685 ; 56 L. J., Q. B. 340 ; 57 L. T. 537 ; 35 W. R. 555 ; 51 J. P. 516— C. A. In an action to recover compensation under the Employers' Liability Act, 1880, it appeared that the plaintiff was in the employment of the defendant, who was a wharfinger, and for the purposes of his business the owner of carts and horses. It was the duty of the plaintiff to drive the carts and to load and unload the goods which were carried in them. Among the horses was one of a vicious nature and unfit to be driven even by a careful driver. The plaintiff objected to drive this horse, and told the foreman of the stable that it was unfit to be driven, to which the foreman replied that the plaintiff must go on driving it, and that if any accident happened his employer would be responsible. The plaintiff continued to drive the horse, and while sitting on his proper place in the cart was kicked by the animal, and his leg was broken : — Held (Lopes, L.J., dissenting), that upon the facts a jury might find the defendant to be liable, for there was evidence of negligence on the part of his foreman, and the circumstances did not con- clusively show that the risk was voluntarily incurred by the plaintiff. Thomas v. Qnarter- maine (18 Q. B. D. 685) distinguished. Per Lopes, L.J., dissenting, that there was no evidence for the jury of the defendant's liability, inasmuch as the facts showed that the plaintiff, with full knowledge of the risk to which he was exposed, had elected to continue in the defen- dant's employment. Yarmouth v. Franoe, 19 Q. B. D. 647 ; 57 L. J., Q. B. 7 ; 36 W. E. 281— D. Breach of Statutory Duty.] — The plain- tiff's husband had been employed in the defen- dant's coal mine. One of the rules established in the mine under s. 52 of the Coal Mines Regu- lation Act, 1872, required a banksman to be constantly present while the men were going up or down the shaft, but it was the regular practice of the mine, as the plaintiff's husband well knew, not to have a banksman in attendance during the night. The plaintiff's husband was killed in coming out of the mine at night by an accident arising through the absfence of a banksman. In an action under the Employers' Liability Act, 1880 :— Held, that the defence arising from the maxim volenti non fit injuria was not applicable in cases where the injury arose from the breach of a statutory duty on the part of the employer, and that the plaintiff was entitled to recover. Thomas v. Qwartermaine (supra) discussed. Baddeley v. Granville {Earl), 19 Q. B. D. 423 ; 56 L. J., Q. B. 501 ; 57 L. T. 268 ; 36 W. E. 63 ; 51 J. P. 822— D. vii. Practice. Reviewing Verdict of Jury.] — Upon an appeal from the judgment of a county court awarding compensation under the act, the High Court is not entitled to consider whether the findings are such as the High Court would have arrived at, but can only consider whether or not there was reasonable evidence to support them. Wellin v. Ballard, supra. Limit of Damages — Overtiine Wages.] — The plaintiff, in an action brought under the Em- ployers' Liability Act, 1880, proved as damages loss of wages in respect both of his employment with the defendants, and also in respect of certain overtime labour under another employer. The jury awarded damages under both heads, but the county court judge held that the plaintiff was only entitled to receive damages in respect of his estimated earnings under the defendants. The amount of damages awarded was less than the amount he might have been awarded in respect of his estimated earnings for three years in the defendants' service : — Held, that s. 3 of the Employers' Liability Act, 1880, does not give a measure of damages, but only a limit within which the jury may award damages, and that the plaintiff was entitled to recover in respect of both employments. Borlicli or Bor- tick V. Head, 53 L. T. 909 ; 34 W. E. 102 ; 60 J. P. 327— D. Trial of Action in County Court— Certiorari.] — See County Coukt, 4. II. LIABILITY OF MASTER TO THIED PERSONS. Accidental Damage to Street Lamp.] — A master is not liable under s. 207 of the Metropolis Local Management Act, for the accidental breaking by his servant of a street lamp, the top 1199 MASTER AND SERVANT— MAXIMS. 1200 of which projected over the kerb, such accident having been caused by some goods on a van, which the servant was driving, coming in con- tact with, and wrecking the top of the lamp. Harding v. Barlm, 37 W. R. 78 ; 53 J. P. 308 — D. For Servant's Negligence.] — See Negli- gence. Scope of Employment.] — M. was a cloak-room clerk in the defendants' employ, and assisted at the parcels' office ; he " used to take ap parcels for passengers from the cloak room to the train, when there was no porter there, and that was a regular thing for him to do." A passenger had asked him to take a parcel to the train, which he did, and as he was running back, he ran against another porter, who in his turn came against the ticket-collector, and the ticket-collector upset the plaintifE's wife, causing injuries which resulted in her death. At the trial the plaintiff was non- suited, on the ground that there was no evidence that at the time of the accident M. was acting within the scope of his employment. It was agreed at the trial that, if the court should be of opinion that the nonsuit was wrong, judgment should be entered for the plaintifE for 236i. and costs : — Held, that there was evidence to go to the jury that at the time of th6 accident M. was acting within the scope of his employment, that the nonsuit was wrong, and that judgment should be entered for the plaintiff as agreed. Milner v. Great Northern Railway, 50 L. T. 367— D. A passenger on a tramway tendered a half sovereign to the conductor of the car in payment of the fare. The conductor, supposing the coin to be counterfeit, gave the passenger in charge to the police : — Held, that the tramway company were liable in an action against them by the passenger for false imprisonment. Furlong v. South Loudon Tramways Company, 48 J. P. 329 ; 1 C. & E. 316— Stephen, J. Section 52 of the Tramways Act, 1870, which enacts that " it shall be lawful for any officer or servant of the promoters or lessees of any tramway " to detain any person defrauding the company of his fare, must be construed as limited to any officer or servant appointed for that purpose. A tramway company gave to their conductors printed instructions, in which it was ordered that, except in cases of assault, conductors were not to give passengers into custody without the authority of an inspector or timekeeper. The conductor of a car, in which the plaintiff was a passenger, detained the plaintiff, and gave her into custody on a charge of passing bad money : — Held, in an action for false imprisonment against the company, that the defendants were not liable. Charleston v. London Tramways Company, 36 W. E. 367 — D. Affirmed 32 S. J. 557— C. A. A servant who commits an unnecessary assault in levying a distress is not acting within the scope of his employment. Ricliards v. West Middlesex Waterworlts Company, 15 Q. B. D. 660 ; 54 L. J., Q. B. 551 ; 33 W. R. 902 ; 49 J. P. 631— D. MAURITIUS. See COLONY. MAXIMS. Generally.] — I need hardly repeat that I detest the attempt to fetter the law by maxims. They are almost invariably misleading ; they are for the most part so large and general in their language that they always include something which really is not intended to be included in them. Yarmouth v. France, 19 Q. B. D. 653 ; 57 L. J., Q. B. 7 ; 36 W. E. 283— Per Esher (Lord), M.R. " Expressio unius, ezcluslo alterius."] — I may observe that the method of construction summarised in the maxim, " expressio unius, exclusio alterius," is one that certainly requires to be watched. Perhaps few so-caUed rules of interpretation have been more frequently mis- applied and stretched beyond their due limits. Colgu/ioun v. Rroohs, 19 Q. B. D. 406 ; .67 L. J., Q. B. 70; 57 L. T. 448; 36 W. R. 332— Per Wills, J. See also S. C. in C. A., per Esher (Lord), M.R., 21 Q. B. D. 65 ; 57 L. J., Q. B. 439 ; 59 L. T. 661 ; 36 W. E. 657 ; 52 J. P. 645. The maxim " Expressio unius, exclusio alterius" is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought; not to be applied, when its appli- cation, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice. Colqwhonn v. Brooks, 21 Q. B. D. 65 ; 57 L. J., Q. B. 439 ; 59 L. T. 661 ; 36 W. E. 657 ; 52 J. P. 645— Per Lopes, L.J. " No one can take Advantage of his own Wrong."] — The maxim that no man can take advantage of his own wrong is somewhat ob- scure ; but in my opinion it only means this : that a man cannot enforce against a person whom he has wronged by a breach of contract or a breach of duty, a right created against such person by such breach of contract or duty. The maxim can only be employed by the person against whom the wrong has been done, except where the person having a derivative right has been clothed with the full rights of the person from whom he has derived his title. London Celluloid Company, In re,Bayley and Hanlury's case, 39 Ch. D. 190 ; 57 L. J., Oh. 843 ; 59 L. T. 109 ; 36 W. E. 673 ; 1 Meg. 45— Per Bowen, L.J. " A Grantor shall not Derogate from his own Grant," ] — The maxim that a grantor shall not derogate from his own grant, does not entitle a grantee of a house to claim an easement of light to an extent inconsistent with the intention to be implied from the circumstances existing at the time of the grant and known to the grantee. Birmingham Banking Company v. Ross, 38 Oh. D. 295 ; 57 L. J., Ch. 601 ; 59 L. T. 609 ; 36 W. E. 914-0. A. 1201 MAXIMS— MAYOR'S COURT. 1202 " Equity looks on that as Done which ought to be Done."]— The maxim that equity looks Upon that as done which ought to be done, ap- plies only (in cases depending upon contract) in favour of persons who are entitled to enforce the contract, and cannot be invoked by volunteers. Anstis, In re, Chetwynd v. Morgan, 31 Ch. D. 596 ; 54 L. T. 742 ; 34 W. E. 483— C. A. "Actio personalis moritur com Person^."] — See Practice (Parties). " Cujns est Solum ejus est usque ad coelum."] — See Wandsworth Board of Works v. United Telephone Company, 13 Q. B. D. 904 ; 53 L. J., Q. B. 449 ; 51 L. T. 148 ; 32 W. K. 776 ; 48 J. P. 676— C. A. " Sanrnum Absque Injuria."] — See Street v. Union Bank of Spain and England, 30 Ch. D. 156 ; 55 L. J., Ch. 31 ; 53 L. T. 262 ; 32 W. R. 901— Pearson, J. "In pari delicto potior est conditio possi- dentis."]— &e Herman v. Zeuchner, 15 Q. B. D. 561 ; 54 L. J., Q. B. 340 ; 53 L. T. 94 ; 33 W. K. 606 ; 49 J. P. 502— C. A. " Nemo bis vezari debet."] — See Brunsden v. Humphrey, 14 Q. B. D. 141 ; 53 L. J., Q. B. 476 ; 51 L. T. 529 ; 32 W. K. 944 ; 49 J. P. 4— C. A. " Omnis nova constitutio futuris formam im- ponere debet etnon praeteritis."]— iSfee Hough v. Windus, 12 Q. B. D. 224 ; 53 L. J., Q. B. 165 ; 50 L. T. 312 ; 32 W. E. 452 ; 1 M. B. E. 1— C. A. And Reid v. Reid, 31 Ch. D. 102 ; 55 L. J., Ch. 294 ; 54 L. T. 100 ; 34 W. R. 333— Per Bowen, L.J. " Omnia preesumuntur rite esse acta."] — See Lauderdale Peerage, Tlie, 10 App. Cas. 692 — H. L. (Sc.) " Qui facit per alium facitper so."] — See Mills V. Armstrong, 13 App. Cas. 1 | 57 L. J., P. 65 ; 58 L. T. 423 ; 36 W. R. 870 ; 52 J. P. 212 ; 6 Asp. M. C. 257— H. L. (E.) "Qui prior est tempore potior est jure."] — See Sociiti Generate de Paris v. Walker, 11 App. Cas. 20 ; 55 L. J., Q. B. 169 ; 54 L. T. 389 ; 34 W. R. 662— H. L. (E.) ; and Lambert's Estate, In re, 13 L. R., Ir. 234— C. A. " Quando aliquid prohibetur fieri, ez directo prohibetur et per obliquum."] — See Rosher, In re, Rosher v. Rosher, 26 Ch. D. 821 ; 53 L. J., Ch. 722— Pearson, J. " Quando aliquid mandatur, maudatur et omne per quod pervenitur ad illud." j —See Murray v. Scott, 9 App. Cas. 519 ; 53 L. J., Ch. 745 ; 61 L. T. 462 ; 33 W. E. 173— H. L. (E.) " Quidquid plantatur solo, solo cedit."] — See Ainslie, In re, Sioinburn v. Ainslie, 30 Ch. D. 485 ; 55 L. J., Ch. 615 ; 53 L. T. 645 ; 33 W. R. 910 ; 50 J. P. 180—0. A. "Bespondeat Superior."] — See White v. Feto, 68 L. T. 710 — Kay, J. ; and Harding v. Barker, 37 W. R. 78 ; 53 J. P. 308— D. " Sic utere tuo ut alienum non lesdas."] — See Whalley v. Lancashire and Yorkshire Railway, 13 Q. B. D. 131 ; 53 L. J., Q. B. 285 ; 50 L. T. 472 j 32 W. E. 711 ; 48 J. P. 500—0. A. ; Love v. Bell, 9 App. Cas. 286 ; 53 L. J., Q. B. 257; 51 L. T. 1 ; 32 W. R. 725 ; 48 J. P. 516— H. L. (E.) ; and Farrer v. Nelson, 15 Q. B. D. 258 ; 54 L. J., Q. B. 385; 52 L. T. 769; 33 W. E. 800; 49 J. P. 725 — D. "Verba chartarum fortius accipiuntur contra proferentem."]- &e Birrell v. Dryer, 9 App. Cas. 345 ; 51 L. T. 130 ; 5 Asp. M. C. 267— H. L. (Sc). And Burton v. English, 12 Q. B. D. 218 ; 53 L. J., Q. B. 133 ; 49 L. T. 768 ; 32 W. E. 655 ; 5 Asp. M. C. 187— C. A. "Volenti non fit Injuria."]- &'e Thomas v. Quartermaine, Baddeley v. Granville (^Lord), and Yarmouth v. France, ante, cols. 1197, 1198 ; Thrussell v. Handyside, 20 Q. B. D. 359 ; 57 L. J., Q. B. 347 ; 58 L. T. 344 ; 52 J. P. 279— D. ; and Osborne v. London and North Western Railway, 21 Q. B. D. 220 ; 57 L. J., Q. B. 618 ; 59 L. T. 227 ; 36 W. E. 809 ; 52 J. P. 806— D. MAYOR'S COURT. 1. Jwisdiction, 2. Certiorari. 3. Appeal. 1. Jurisdiction. "Carry on Business" — Solicitor's Clerk.] — A clerk employed by a solicitor at offices in the City of London does not " carry on business " there within the meaning of the Mayor's Court Extension Act, 1857 (20 & 21 Vict. c. clvii.), s. 12, so as to be subject to the jurisdiction of the Mayor's Court. Lewis v. Graham or Gra- liam V. Lewis, 22 Q. B. D. 1 ; 58 L. J., Q. B. 117 ; 37 W. E. 73 ; 53 J. P. 166— C. A. Affirming 59 L. T. 35— D. Claim over £50 — Contract by Telegram — OfEer received and accepted within City.] — When an offer is sent by telegram and a telegram in reply is sent accepting the offer, the contract is com- plete on the despatch of the telegram in reply. An action was brought in the Mayor's Court for a sum of 50Z. for money had and received, alleged to have been received under bets made by the defendant on behalf of the plaintiff. The plaintiff had sent a telegram, " Put me on so much on such a horse," from a post-office out- side the City, to the defendant, a " bookmaker," who had offices within the City. This telegram was received by the defendant within the City, and it was answered by a telegram sent from a telegraph office within the City accepting the offer ; — Held, refusing a motion for a prohibition, that the contract (if any) was complete on the receipt of the telegram within the City and the sending the telegram in reply within the City ; that the whole cause of action (if any) arose within the City; and that the Mayor's Court had jurisdiction. Cowan v. 0^ Connor, 20 Q. B. D. 640 ; 67 L. J., Q. B. 401 ; 58 L. T. 857 ; 36 W. E. 896— D. 1203 MAYOE'S COURT. 1204 Claim not exceeding £60 — Debt incurred with- out but assigned within Jurisdiction.] — The plaintifE sued the defendant in the Mayor's Court upon a debt which had been incurred outside the iurisdictiou, but which had been assigned to the plaintifE within the jurisdiction. On an application for a prohibition to the Mayor's Court: — Held, that the assignment formed part of the cause of action, and that therefore the case fell within the iurisdiction of the Mayor's Court. Coohe v. Gill (8 L. E., C. P. 107) followed. Read v. Brown, 22 Q. B. D. 128 ; 58 L. J., Q. B. 120 ; 60 L. T 250 ; 37 W. R. 131 — C. A. Account stated.] — The plaintiff's soli- citor, who carried on business within the juris- diction of the Mayor's Court, wrote to the defendant demanding payment of 11. 6s. Gel. for goods sold and delivered by him to the plaintifE. Neither of the parties resided or carried on busi- ness, nor was the contract entered into within the jurisdiction. The defendant, in a letter written to the plaintiff's solicitor— posted out- side, but received within the jurisdiction — ad- mitted that he owed 51. 6s. Gd. to the plaintiif. The plaintiff having brought an action in the Mayor's Court to recover 51. 6s. 6d. on an ac- ooant stated, the defendant obtained a writ of prohibition : — Held, that the admission of the defendant and the bringing of the action amounted to an account stated within the juris- diction of the Mayor's Court, and that therefore the Mayor's Court had jurisdiction to try the action. Ortmdy v. Townsend, 36 W. E. 531 — C. A. Sale of Property — Agreement where made.] — The defendant verbally agreed outside the city of London and the liberties thereof, to purchase from the plaintiff the lease of a shop at New Cross, in Surrey, with the goodwill and stock-in-trade of a drapery business carried on there, and the terms thereof were embodied in two counterpart documents, one of which was signed by the defendant at Bow, in Middlesex, and the other was subsequently signed by the plaintiff within the city, and the documents so signed were then exchanged between the parties' solicitors within the city. Neither of the parties dwelt or carried on business within the city. There remained a sum of 50^, balance of the purchase-money, unpaid, and the plaintiff sued the defendant for it in the Mayor's Court. The defendant thereupon obtained a writ of prohibi- tion to restrain the Mayor's Court from further proceeding with the action : — Held, that the writ had been rightly issued, as no part of the cause of action arose within the jurisdiction of the Mayor's Court. Alderton v. Archer, 14 Q. B. D. 1 ; 54 L. J., Q. B. 12 ; 51 L. T. 661 ; 33 W. E. 136— D. Solicitor of High Court may he Sued in.] — A solicitor of the High Court who had also been admitted a solicitor in the Mayor's Court was sued in the latter court : —Held, that he was not entitled to have the action removed into the High Court on the ground of the privilege of a solicitor of the High Court to be sued in that court only. Day v. Ward, 17 Q. B. D. 703 ; 55 L. J., Q. B. 494 ; 55 L. T. 518 ; 35 W. B. 59— D. 2. Ceetiobaki. Amount more than £60 — Discretion.] — A party to an action in the Mayor's Court is not entitled as of right to remove the action by writ of certiorari into the High Court, but can only do so by leave of a judge of the High Court in a case where it shall appear to him that the action is one which is fit to be tried there. Cherry v. Endean, 55 L. J., Q. B. 292 ; 54 L. T. 763 ; 34 W. E. 458— D. Action "fit to be tried " in Superior Court] — Eule 12 of the Borough and Local Courts of Becord Act, 1872, which is applicable to the Mayor's Court, provides that " no action entered in the court shall, before judgment, be removed or removable from the court into any superior court by any writ or process, except by leave of a judge of one of the superior courts in cases which shall appear to such judge fit to be tried in one of the superior courts," &c. The plaintiff brought an action in the Mayor's Court against the defendant, a stockbroker, for alleged misconduct in connexion with the pur- chase of certain shares, and claimed llOf. as damages : — Held, that the action was one which was '■ fit to be tried " in the superior courts, and that the defendant was accordingly entitled to a writ of certiorari. Simpson v. Shaw, 56 L. J., Q. B. 92 ; 56 L. T. 24— D. Time for lodging Writ.] — By the Mayor's Court of London Procedure Act, 1857, s. 17, " No cause depending in the Mayor's Court shall be removed before judgment therein into any superior court, unless the writ removing such cause shall have been lodged with the proper officer of the court within one month after the service of the plaint, or unless such writ shall have been lodged with such officer before such action shall have been entered for trial according to the practice of the Mayor's Court " : — Held, that the section gave alternative periods for lodging the writ, and that the defendant could avail himself of whichever was the longer period. Prim v. Smith, 20 Q. B. D. 643 ; 57 L. J., Q. B. 336 ; 58 L. T. 606 ; 36 W. R. 53O— C. A. By the Borough and Local Courts of Record Act, 1872, schedule, r. 12, it is enacted that no action shall before judgment be removed into any superior court except by leave of a judge of one of the superior courts in cases which shall ap- pear to such judge fit to be tried in one of thesupe- rior courts, and upon such terms as to payment of costs, security for debt and costs, or such other terms as such judge shall think fit : — Held, that this rule does not override s. 17 of the Mayor's Court of London Procedure Act, 1857, and does not substitute the discretion of a judge for the strict limit of time imposed in that section. Price V. Sliaw, 59 L. T. 480— D. 3. Appeal. To High Court— Claim over £20 — leave to Appeal.] — By the Mayor's Court of London Procedure Act, 1857, s. 8, an appeal from the Mayor's Court to the superior courts is givea where the sum sought to be recovered exceeds 201., and, by s. 9, such appeal is to be by special case. By s. 10, the parties in any case in the Mayor's Court may, if the judge grants leavte, 1205 MEDICINE AND MEDICAL PEACTITIONEE. 1206. move in the superior courts to set aside the verdict :— Held, that Ord. LIX. r. 10, which provides that all appeals from inferior courts shall be by notice of motion, does not make it necessary where the sum sought to be recovered in the Mayor's Court exceeds 201., and a motion to set aside the verdict and judgment on the ground of misdirection is made in the High Court, that the leave of the judge of the Mayor's Court should be obtained. Uder v. Lery, 19 Q. B. D. 210 ; 56 L. J., Q. B. 650-D. MEASURE. Weights and Measures.] — See Weights and Measubes. Of Damages.]— See Damages. MEAT. Sale of Unsoond Meat] — See Health. MEDICINE AND MEDICAL PRACTITIONER. Illegal Agreement — Serving Unqualified Per- son as Assistant.]— The Act 55 Geo. 3, c. 194, prohibiting medical practice by unqualified per- sons, is not repealed by implication by the Medical Act, 1858. The defendant, a duly qualified medical practitioner, agreed with the plaintiff, a medical practitioner not duly quali- fied, but who was described in the agreement as " medical practitioner," to serve the plaintiff as assistant in his profession as a medical prac- titioner, and not to practice at R. within five years after the close of the engagement. The plaintifE applied for an injunction to prevent the deiendknt from practising at K. in breach of this agreement : — Held, by Pearson, J., that the Medical Act of 1858 does not prohibit unquali- fied persons from practising medicine, its object being only to enable the public to distinguish between qualified and unqualified practitioners — that the use, by an unqualified person in a private agreement with another medical man, of any of the titles for the wilful use of which by an unqualified person for the purpose of deceiv- ing the public, penalties are imposed by s. 40 of the act, is not an offence within that section — that the agreement therefore was not illegal, and that the plaintiff could enforce its terms, and was entitled to an injunction. The defen- dant appealed, and on appeal showed that the plaintiff had given various certificates of cause of death, which showed that the plaintiff had attended the deceased persons during their last illness, and from which it was to be inferred that he attended patients in the way in which a medical practitioner ordinarily attends, and in fact personally acted as an apothecary : — Held, that his doing so was made illegal by the act 55 Geo. 3, c. 194, s. 14, that the agreement there- fore was to assist the plaintiff in carrying on a business which he could not lawfully carry on, and that the agreement was illegal and could not be enforced. Davies v. Maliuna, 29 Oh. D. 596 ; 54 L. J., Ch. 1148 ; 53 L. T. 314 : 33 W. E. 668 ; 50 J. P. 5— C. A. Semble, if the plaintiff had carried on his business by means of duly qualified assistants, without personally acting as a physician, sur- geon, or apothecary, the agreement might have been legal. Ih. Unregistered Assistant — Bight of Begistered Practitioner to recover for Services of.] — A qualified medical practitioner, duly registered under the Medical Act, 1858, established a branch practice under the management of his brother, who was not so qualified or registered, and held no apothecary's certificate under 55 Geo. 3, c. 194. In an action by the assignee of the quali- fied practitioner to recover charges for medical aid and advice rendered, and the costs of medicines supplied, to the defendant by the brother alone, without consulting the qualified practitioner : — Held, that under ss. 31 and 32 of the Medical Act, 1858, the plaintiff was not entitled to recover. Howarth v. Brearley, 1* Q. B. D. 303 ; 56 L. J., Q. B. 543 ; 56 L. T. 743 ; 36 W. E. 302 ; 51 J. P. 440— D. Sale of Drugs — Standard Quality — British Pharmacopoeia.] — See White v. By water, ante, col. 849. Agreement not to carry on Business — Bestraint of Trade.] — See Palmer v. Mallet and Rogers v. Drury, ante, cols. 487, 488. Dentist — Begistration of — Withdrawal of Diploma.] — Where a person has been registered under the Dentists Act, 1878, as a licentiate of a medical authority, the fact that his diploma has since been revoked by such medical authority does not render him liable to be erased from the dentists' register under the act. Partridge, Ex parte, or Meg. v. General Medical Coiincit, 19 Q. B. D. 467 ; 36 W. E. 442— G. A. Affirming 56 L. J., Q. B. 609 ; 52 J. P. 40— D. MERCHANDISE MARKS ACT. See TEADE. MERCHANT SHIPPING. See SHIPPING. 1207 MERGER— METROPOLIS. 1208 MERGER. Equitable and Legal Estates.] — Where an equitable estate in fee by purchase and a legal estate in fee by descent meet in the same person, the equitable estate will merge in the legal, and the descent will be according to the legal title. Wood V. Douglas, or Douglas, In re, Douglas V. Wood, 28 Ch. D. 327 ; 54 L. J., Ch. 421 ; 52 L. T. 131 ; 33 W. R. 390— Pearson, J. Semble, where a person takes an equitable estate by election, and a legal estate by descent, he is not a purchaser within the act 3 & 4 Will. 4, c. 106. Ih. Charge— Estate for Life with General power of Appointment.]— H. S., by his marriage settle- ment, assigned a sum of 7,500Z. to trustees, in trust for himself for life, and after the deaths of both in trust for all the children of the marriage, in such shares, &c., as H. S. should by deed or will appoint ; and he charged the 7,500Z. on an estate to which he was absolutely entitled. There were three children of the marriage, J. G. S., and two daughters. H. S., by his will, in 1851, appointed 5,000?. of the fund to J. G. S., and devised to him and the heirs of his body the lands on which it was charged. In 1858, by •codicil, he revoked the devjse of the lands in the will, and devised them to J. G. S. for life, remainder to such uses as J. G. S. should by deed or will appoint. In 1872 by his marriage settlement, reciting the devises of the lands by the will and codicil, J. G. S. in exercise of his power appointed the lands, after his death, to trustees for 200 years, to secure a jointure for his wife, remainder in strict settlement to the sons and daughters successively of the intended or any subsequent marriage, with an ultimate remainder to himself in fee. No mention or allusion to the charge of 5,000Z. was made in the settlement : — Held, that there was no merger of the charge, and that the 5,0002. continued personal estate of J. G. S. Smith v. Smith, 19 L. E., Ir. 514— M. E. In Jndgment.]— &c Judgment. : By Leases,] — See Dynevor (^Lord') v. Tennant, ante, col. 1078. MERSEY. See SHIPPING. METROPOLIS. I. Vebtkt and Board op Works. 1. Vestries and Their Officers, 1208. 2. Actions, aiid Proceedings against, 1209. 3. Jurisdiction. a. Buildings, 1210. b. Streets, 1212. c. Sewers and Drainage, 1215. rf. Recovery of Expenses, 1218. II. Eates. 1. In General, 1221. 2. Valuation Acts, 1221. III. Tbapalgar Square, 1223. IV. Stage Carriages, 1223. I. VESTEY AKD BOAED OF WOEKS. 1. VESTRIES AND THEIR OFFICERS. Qualification of Hember — Assessment to Poor Eate— Penalty.]— By 18 & 19 Vict. c. 120 (Me- tropolis Local Management Act, 1855), s. 6, " the vestry elected under this act in any parish shall consist of persons rated or assessed to the relief of the poor upon a rental of not less than iOl. per annum ; and no person shall be cajDable of acting or being elected as one of such vestry for any parish, unless he be the occupier of a house, lands, tenements, or hereditaments in such parish, and be rated or assessed as aforesaid upon such rental as aforesaid within such parish " : — Held, that to be qualified as a vestryman under the act, a person must be the occupier of real pro- perty in the parish, and be himself rated or assessed in respect of such occupation to the required amount. Mogg v. ClarJc, 16 Q. B. D, 79 ; 55 L. J., Q. B. 69 ; 53 L. T. 890 ; 34 W. E. 66 : 50 J. P. 342— C. A. Member "interested in Contract" — Acting as Member — Penalty — Evidence — Minute-Book.] — The brother of the defendant entered into a con- tract with a vestry constituted under the Metro- polis Management Act, 1855, and in order to enable him to carry it out, borrowed money from the defendant, who by way of security took an assignment of the contract. Afterwards the de- fendant was elected a member of the vestry. An action for penalties having been brought against the defendant for acting as member of the vestry, an attendance-book of the members signed by the defendant and the minute-book of the vestry containing his name as a member in attendance were put in as evidence at the trial : — Held, that s. 54 of the Metropolis Management Act, 1855, applied to contracts made as well before as after the election of a member, and that the defendant was " interested " in the contract in question within the meaning of that section : that there was evidence under s. 60 that the defendant had acted as member of the vestry ; and that he was liable to penalties for having acted after he had " ceased " to be a member. Sunninqs v. William- sou, 11 Q. B. D. 533 ; 52 L. J., Q. B. 416 ; 49 L. T. 361 ; 32 W. E. 267 ; 48 J. P. 135— C. A. Superannuation Allowance to Officer — Discre- tion as to Amount.] — A metropolitan vestry has a discretion under 29 Vict. c. 31, s. 1, to grant or to refuse a superannuation allowance to a retir- ing officer ; but, if an allowance be granted, the vestry has no discretion as to the amount, which must be in accordance with the scale prescribed in s. 4. Reg. v. St. George's Vestry, 19 Q. B. D. 533 ; 56 L. J., Q. B. 652 ; 35 W. E. 841 ; 52 J. P. 6— D. 1209 METEOPOLIS— Festj-^ and Board of Works. 2. ACTIONS AND PROCEEDINGS AGAINST. Penalty— Acting as Vestryman— Disc[ualifloa- tion.] — See supra. Compensation — Emoluments of Office.] — The Metropolitan Bridges Act, 1877, pvovided that compensation should be paid to certain officers, including clerks, but not including solicitors, of the private companies or corporations whose bridges were taken over by the Metropolitan Board of Works under the act, upon a scale to be calculated on the basis of the emoluments actually received by them in the two years pre- vious to the passing of the act. The Deptford Creek Bridge was taken over by the board, and thereby the plaintiff, who had been clerk to the Deptford Creek Bridge Company, lost his office. He had received a salary as clerk, and also pay- ments for legal business done by him as solicitor for the company, and commission on the rents of the company's property which he received. The Deptford Creek Bridge Company had by their act power to appoint a solicitor and receiver as well as a clerk ; they had never appointed such officers, and the legal business of the company had always been done and the rents received by the clerk, who had always been a solicitor : — Held, that, by the practice of the company, these duties had been attached to the office of clerk, and that the plaintiff was entitled to compensa- tion in respect of the payments received for dis- charging them as part of the emoluments of his office ; but, as to the payments for legal business done by him, only in respect of his proportion as partner in the firm of solicitors of the net profits after deducting all office expenses necessarily incurred in earning the money. Drew v. Metro- politan Board of Works, 50 L. T. 138— C. A. Held, also, that the boarJ were not entitled to have the bills of costs taxed before the amount of compensation was assessed, as the bills had been paid by the company without taxation. n. Liability of Vestry for breaking Qas-Fipes laid in Eoad — Eepairing Eoad — Steam Roller.] — The plaintiffs, a gas company, having statutory powers to place mains and pipes under the high- ways, and a statutory obligation to supply gas within the parish of K., laid, prior to 1872, cer- tain pipes under certain highways within the jurisdiction of the defendants, who, being the highway authority for the district, were, by virtue of 10 Vict. c. 34, 18 & 19 Vict. c. 120, and 25 & 26 Vict. c. 102, bound to repair the high- ways, and empowered to pave and alter the level of streets under their management. In 1872 the defendants began to use steam rollers of considerable weight for the purpose of repair- ing the highways, and thereby fractured certain pipes belonging to the plaintiffs laid under the highways : — Held, that the plaintiffs were en- titled to an injunction restraining the defendants from using any steam rollers in such a way as to fracture or damage any pipes belonging to the plaintiffs which were properly laid under the highways within the jurisdiction of the defen- dants, ffas Light and Coke Company v. St. Mary Ahhott's Vestri/, 15 Q. B. D. 1 ; 54 L. J., Q. B. 414 ; 63 L. T. 457 ; 33 W. K. 892 ; 49 J. P. 469— C. A. Affirming 1 C. & E. 368— Field, J. 1210 Notice of Action.]— Per North, J. Section 106 of the Metropolis Local Management Acts Amend- ment Act, 1862, which requires that before any proceeding is instituted against a district board a month's notice shall be served on them by the person intending to take the proceeding, does not apply to actions in equity : — Per Lopes, L.J. (Cotton and Lindley, L.JJ.,uot dissenting), that that section does not apply to an action for an injunction to restrain a nuisance. Sateman v. Poplar Board of Works, 33 Oh. D. 360; 56 L. J., Ch. 149 ; 55 L. T. 374. Liability of District Board — Vesting of Sewers — Nnisance.] — See Sateman v. Poplar Board of Works, post, col. 1216. 3. JURISDICTION. a,. Buildings. General Line — Old Buildings.] — The appel- lants' house was built at the corner of the K. Road and a new street called D. Gardens. The side of the house abutting on the eastern side of D. Gardens projected beyond a row of houses on that side of D. Gardens. Under s. 75 ' of the Metropolis Management Amendment Act, 1862 (25 & 26 Vict. c. 102), the superintending archi- tect to the Metropolitan Board of Works gave a certificate that the main fronts of that row of houses was the general line of buildings, on the eastern side of D. Gardens, but did not decide that that was the general line of buildings, either of the row of houses or of the street in which the appellants' house was situate : — Held, that no offence under s. 75 had been committed by the building of the appellants' house, and that there was no jurisdiction for a magistrate's order under that section directing the demolition of the projecting part of the house. Barlow v. St. Mary Abbott's Vestry, 11 App. Cas. 257 ; 55 L. J., Ch. 680 ; 55 L. T. 221 ; 34 W. R. 521 ; 50 J. P. 691— H. L. (E.). Jurisdiction of magistrate — Architect's Decision.] — The certificate of the superintending architect of the Metropolitan Board of Works made under the Metropolis Management Amend- ment Act, 1862 (25 & 26 Vict. c. 102), s. 75, and fixing the " general line of buildings " in a road, is conclusive as to a building erected before the certificate is made ; and on the hearing of a summons (issued after the making of the certi- ficate) for an offence under s. 75 alleged to have been committed in respect of such building, the justice has no jurisdiction to review the archi- tect's decision or decide for himself whether the line fixed by the certificate is the true general line. Simpson v. Smith (6 L. R., C. P. 87) over- ruled. Spaekman v. Plumstead Board of Works, 10 App. Cas. 229 ; 54 L. J., M. C. 81 ; 53 L. T. 157 ; 33 W. R. 661 ; 49 J. P. 420— H. L. (B.). Service of " Order in Writing made on " Builder.] — A magistrate made a verbal order under s. 75 directing the builder to demolish part of a house within eight weeks. The builder was present when the order was made, but it was not reduced into writing till the day when the eight weeks expired ; after that day a copy was served upon him or came to his knowledge : 1211 METROPOLIS— Fes«r2/ and Board of Works. 1212 — Held, that the order was not "an order in writing made on " the builder within the mean- ing of s. 75, and was therefore invalid. Barlow V. St. Mary Abbott's Vestry, supra. " Puhlie Building" — Ambulance Station— leposit of Plans.] — An ambulance station struo turally disconnected with any building, and from which the public is rigorously excluded, is not of itself a public building within s. 3 of the Metropolitan Building Act, 1855, so as to require the builder to deposit plans and sections of the building with the notice of its erection to the district surveyor under bye-law 5, made under s. 16 of the Metropolitan Management and Building Acts (Amendment Act), 1878. Josolyney. Meeson, 53 L. T. 319 ; 49 J. P. 805— D. Temporary Structure— Continuous Offence.] — — ^Where a temporary structure had been erected within the metropolitan district without the licence of the Metropolitan Board of Works, but no complaint of such erection was made until after the expiration of six months from its completion : — Held, that the ofEence was a con- tinuous one as long as the structure remained existent, and that proceedings for the recovery of the penalties might be taken within six months of the time within which it continued to exist. Metropolitan Board of WorJts v. Anthony, 5i L. J., M. C. 39 ; 33 W. R. 166 ; 49 J. P. 229— D. Bye-Law — Removal of Animal Matter from "Site" underneath Foundations.] — By the Metropolis Management and Building Acts Amendment Act, 1878, s. 16, the Metropolitan Board of Works were empowered to make bye- laws with respect to " the foundations of houses, buildings, and other erections, and the sites of houses, buildings, and other erections to be con- structed after the passing of this act, and the mode in which and the materials with which such foun- dations and sites shall be made, formed, exca- vated, filled up, prepared, and completed for securing stability, the prevention of fires, and for purposes of health." By s. 14 the term " site " is defined to mean " the whole space to be occupied by such house, building, or other erection between the level of the bottom of the foundations and the level of the base of the walls." The Metro- pohtan Board of Works made the following bye- law : " No house, building, or other erection shall be erected upon any site or portion of any site which shall have been filled up or covered with any material impregnated or mixed with any f^cal, animal, or vegetable matter, or which shall have been filled up or covered with dust, or slop, or other refuse, or in or upon which any such matter or refuse shall have been deposited, unless and until such matter or refuse shall have been properly removed by excavations or other- wise from such site " : — Held, that the meaning of the word " site " in the bye-law was governed by the interpretation of that word in the act, so that the bye-law did not authorize the Metro- politan Board of Works to direct the removal of fffipal, animal or vegetable matter in the soil below the level of the bottom of the founda- tions. BlashiU v. Chambers, 14 Q. B. D. 479 ; 53 L. T. 38 ; 49 J. P. 388— D. New Building — Summons to leave sufficient open Space — Limitation of Time.] — G., the builder of a new house in the metropolis, on 1st April sent notice to B., the district surveyor, with plans. On 4th August, B. served a 48 hours' notice on G. to amend the work and have suffi- cient area space pursuant to 45 Vict. c. 14, s. 14. The house was then covered in, and nothing was done under the notice. On 1st February follow- ing, information of an offence was laid by B. : — Held,that the offence was the refusal to do the work ordered on 4th August, and the informa- tion was within the six mouths' limitation. Bovill V. Gibbs, 51 J. P. 485— D. Artizans' Swellings — Obstruction of Light — Eight to Compensation.] — See Wigram v. Fryer, ante, col. 1121. Party Structure — Damage — Liability of Builder.] — The plaintiff, an owner in fee simple of a house in London, brought an action against builders claiming damages on the ground that they, in the course of rebuilding an hotel, had caused injury to the plaintiff's house by cracking and displacing the wall, and also asking for an injunction. On the motion for injunction an inquiry as to damage was directed to be taken before a special referee, and the referee assessed the structural damage at 40Z., without prejudice to any question of liability. The defendants in their defence raised the contention that the works were executed under the provisions of the Metro- politan Building Act, and that the damage (if any) to the plaintiff's premises was " a necessary consequence of carrying out the said works," and that the plaintiff's remedy (if any) was only against the building owner by whom the defen- dants were employed : — Held, that the Metro- politan Building Act did not exonerate a builder from liabilityfor damage which had arisen from his negligence and want of care and skill. The maxim " Respondeat superior " does not absolve the inferior, if by his negligence a loss has been sustained. If, in doing the act, he is guilty of negligence whereby loss and damage are occa- sioned to another, he is personally liable. White V. Peto, 58 L. T. 710— Kay, J. b. Streets. New Street is a " Street."]— &e St. John's, Hampstead v. Hoopel, post, col. 1217, and St. John's, Hampstead v. Cotton, post, col. 1220. Laying out New Street— Notice to District Surveyor — Complaint more than Six Months after.] — L. was summoned by the Metropolitan Board of Works for laying out a new street of less than the required width, contrary to 25 & 26 Vict. c. 102, s. 98. L. gave notice of his intended building in May, 1883, to the dis- trict surveyor, and paid his fees, but no notice was given by the surveyor to the board till November, 1883. The complaint was made in March, 1884 : — Held, that notice to the district surveyor was the date of the discovery by the board, and, therefore, the complaint was too late, being more than six months after the discovery, and so contrary to 25 & 26 Vict. c. 102, s. 107. Metropolitan Board of Works v. Lathey, 49 J. P. 245— D. — - "For Foot Traffic only."]— Artizans' dwellings, comprising twenty-six tenements, ac- 1213 METEOPOLIS— FestJT/ and Board of Works. 1214 ■commodating about 250 persons, were built, opening on an approach 100 ft. long and 16 ft. wide, entered from a public street through a gateway 10 ft. wide, over which one of the buildings was carried. A roadway had previously existed on the site with warehouses abutting thereon, and the gateway included the site of a former gateway, which had been pulled down and altered to a greater width. The approach ■did not afford communication with any other public street, and was for the sole use and con- venience of the tenants of the dwellings, to the exclusion of the public, no right of way over the same having ever been dedicated to or used by the public at large : — Held, that the approach had not been laid out as " a street for foot traffic only " within the meaning of the 8th section of the Metropolis Management and Building Acts (Amendment) Act, 1882 (45 Vict. c. 14), so as to require the sanction of the Metropolitan Board of Works to the laying out thereof. MetropoUtan Board of Works v. Nathan, 54 L. T. 423 ; 34 W. R. 164 ; 50 J. P. 502— D. "Street" — Ueaning of — Compelling State- ment of Case.] — TheG. road was a lane 340 feet long ; there were no buildings on either side of It, except four houses at one part of it, and the lane was bounded on the north and south by "back gardens and the backs and sides of houses. In proceedings taken by the Fulham Board of Works for the paving of the lane as a "new street" within the meaning of the Metropolis Management Acts, the magistrate held that the lane was not a "street," and refused to state a case, as he considered the question one of fact : — Held, that the question whether the lane was a " street " or not, was a question of fact, and not of law, and that the magistrate could not be ■compelled to state a case. Beg. v. Sheil, 50 L. T. 590 ; 49 J. P. 68— D. Widening— Power of Commissioners to take Xand.] — Two houses adjoining Wood Street, in the city of London, having been destroyed by fce, the outer walls being left standing, the Commissioners of Sewers adjudicated that it was ■desirable to widen Wood Street, and that the two houses, and the land on which they stood, projected into and prevented them from widen- ing the street, and that the possession and pur- chase of those houses was necessary for that purpose, and they directed their solicitor to treat for the purchase. Notice to treat was accordingly given for the whole of the houses. The owners brought their action for an injunc- tion to restrain the commissioners from proceed- ing on this notice. It was admitted by the commissioners that they only meant to use a strip of 5J feet in breadth for widening the street, and intended to sell the rest -mthout ■giving the plaintiffs any option of pre-emption : — Held, that the plaintiffs were entitled to an injunction, for that the adjudication was ultra vires, the commissioners having no power to adjudicate that the possession of the whole of the piece of land is necessary for the purpose of improvements when they only intend to use a small part of it for that purpose, though if they made such an adjudication in the belief that they should require the whole for the improve- ments, the correctness of the adjudication could not be questioned. Gard v. Commissioners of Sewers, 28 Ch. D. 486 ; 54 L. J., Ch. 698 ; 52 L. T. 827— C. A. Severance. ] — If part of a piece of land pre- vents an improvement, the commissioners have power to take part oompulsorily, their power of proceeding compulsorily not being limited to taking the whole. Whether the commissioners, if they only want a part of the site of an exist- ing house for the purpose of an improvement, can adjudicate that the possession and purchase of the whole house are necessary, quaere. Zb. A metropolitan vestry required, for the pur- pose of widening a street, a part of the buildings and site of an orphanage that would leave a substantial portion of the premises : — Held, that (the owners wishing to sell the part required only) the vestry could not take the whole. Teuliere v. St. Mary Aibott's Vestry, 30 Ch. D. 642 ; 55 L. J., Ch. 23 ; 53 L. T. 422 ; 50 J. P. 53 — Pearson, J. Bight of Pre-emption.] — Semble, that the right of pre-emption given by 57 Geo. 3, c. xxix., s. 96, is not taken away by the City of London Sewers Act, 1851 (14 & 15 Vict, c. xei.), s. 54. Gard v. Commissioners of Sewers, supra — Per Kay, J. Improvements — Pailure to carry out — Ex- piration of Time — Penalties.] — By a local act certain persons were nominated directors of a company to establish a certain public market, for which purpose the company had compulsory powers to take the land needed for the market, such powers to expire within three years of the passing of the act. It was also provided that certain streets in the immediate neighbourhood of the market, acting as approaches to the same, should be widened within a stated period under certain penalties, for which purpose of widening tbe company might acquire land by agreement with the owners of the adjoining property, but not by compulsion. The company never had any real existence, and the whole scheme proved abortive. The time within which the company could exercise its compulsory powers had ex- pired : — Held, that the company having failed to widen the aforesaid streets, the vestry was entitled to the penalties under the statute. St. Mary, Neioington v. South London Fish Market Company, 52 J. P. 292— Cave, J. Property in — Overhead Wires.] — By the Me- tropolis Management Act, 1855, s. 96, "all streets, being highways, shall vest in and be under the management and control of the vestry or dis- trict board of the parish or district in which such highways are situate." Defendants, a telephone company, fixed a telephone wire to a chimney, and stretched it across a street, which was vested in plaintiffs as the district board, at a height of about thirty feet from the ground. Plaintiffs brought an action for an injunction to restrain defendants from keeping up the wire : — Held, that what was vested in plaintiffs was the pro- perty in the surface of the ground, together with as much space, both above and below the surface, as amounted to the area of ordinary user ; and that as the wire in question was above this area, and was not shown to be dangerous, so as to amount to a nuisance, plaintiffs were not entitled to an injunction : — Held, also, that defendants did not require plaintiffs' consent under 26 & 27 1215 METROPOLIS— Festrj/ and Board of Works. 1216 Vict. c. 112, 9, 12, to entitle them to place the wire across the street. Wandsworth Board of Worltg V. United Teloplione Company, 13 Q. B. D. 904 ; 53 L. J., Q. B. 449 ; 51 L. T. 148 ; 32 W. R. 776 ; 48 J. P. 676— C. A. Regulation of — Nuisanoe,] — The statute 25 & 26 Vict. c. 102, s. 73, extends to the metropolis the powers of improving and regulating streets, and for suppressing nuisances, contained in 57 Geo. 3, c. 29. S. kept a barrow of chestnuts several hours standing in a street in the P. dis- trict, which was outside the area of the Metro- politan Traffic Act, 30 & 31 Vict. i>. 135, but witbin the metropolis, and an officer of the local board desired him to remove, but he refused : — Held, that S. was liable to be convicted of an offence contrary to 57 Geo. 3, c. 29, s. 65. Ful- ham Board of Works v. Smith, 48 J. P. 375— D. Obstruction — Power of Police to Prosecute.] — ^A person, by singing hymns, occasioned a crowd to assemble, and thereby obstructed a certain highway within the metropolitan police district. An information was accordingly preferred against him by an inspector of police, under s. 72 of the Highway Act : — Held, that the pro- visions of 8. 72 of the Highway Act were ap- plicable to highways within the metropolitan area : — Held, also, that a prosecution under s. 72 of the act might be initiated by anyone, and therefore that the proceedings taken by the police were valid. Bach v. Holmes, 57 L. J., M. C. 37 ; 56 L. T. 713 ; 51 J. P. 693 ; 16 Cox, C. C. 263— D. Street Lamp — Accidental Damage to — Liability of Master.J^A master is not liable under s. 207 of the Metropolis Local Manage- ment Act, for the accidental breaking by his servant of a street lamp, the top of which pro- jected over the kerb, such accident having been caused by some goods on a van which the servant was driving coming in contact with and breaking the top of the lamp. Jlardhig v. Barher, 37 W. K. 78 ; 53 J. P. 308— D. Power of District Board to erect Posts — Interference with Market.] — A district board of works, under the statutory powers conferred by 57 Geo. 3, c. 29, s. 58, and 18 & 19 Vict. c. 120, 8. 108, threatened to erect posts by the side of public footpaths along the public roads leading into the area of Spitalfields Market, in order to preserve the rights of the public and to insure the safety of foot-passengers. It was proved that this would seriously interfere with the access to the market, which had been recently enlarged by throwing into it the site of houses which had been pulled down belonging to the plaintiff : — Held, that such an exercise of the board's powers would be an interference with the "rights and privileges vested in the plaintiff in reference to a market " within the exception contained in 18 & 19 Vict. c. 120, s. 91, and an injunction was granted restraining the proposed action of the board. Horner v. Whitecliapel Board of Worlis, 55 L. J., Ch. 289 ; 53 L. T. 842— C. A. 0. Sewers and Drainage. Vesting of Sewers in District Board — Con- nexion with Drain illegally made — Liability of Board.] — The duty imposed by s. 72 of the Metropolis Local Management Act, 1855, on a district board, to keep the sewers which are by the act vested in them so as not to be a nuisance, is not an absolute duty, but only a duty to use all reasonable care and diligence to keep the sewers in a proper condition. If, therefore, a drain which was originally a private drain, has, by reason of another drain being con- nected with it, become a " sewer," and therefore by the act vested in the district board, the board will not be liable for a nuisance caused by the drain, if it is shewn that the connexion was made illegally without the knowledge of the board, and that before action brought they did not know, and could not by the exercise of reasonable care have discovered, that the drain was a "sewer." Hammond v. St. Pancras (9 L. R., C. P. 316) followed. Bateman v. Poplar Board of Works, 37 Ch. D. 272; 57 L. J., Ch. 579; 58 L. T. 720; 36 W. R. 501— North, J. Drainage by "Combined Operation."] — The owner of a plot of ground within the metro- politan district on which he was about to buUd fifteen contiguous houses, sent to the local board notice of his intention to lay down upon it a pipe drain running parallel to the houses, through which the houses would be di-ained into the main sewer belonging to the Metropolitan Board. The local board signed their approval of the scheme by letter, and entered their approval in their books, but made no formal order. The owner completed the drain : — Held, by North, J., that s. 74 of the Metropolis Local Management Act, 1855, which enables a district board to order a group or block of contiguous houses to be drained by a " combined operation," is supplemental to s. 73, and like that section applies only to existing houses ; that the local board had therefore no power to make an order for draining by a " combined operation" a set of houses in course of erection, and that if they had, their approval of a scheme proposed by the owner did not amount to an order; that the drain in question was therefore not a " drain for draining any group or block of houses by a com- bined operation under the order of any vestry or district board." and was a "sewer" and not a '■ drain " within the meaning of s. 250, and by virtue of 8. 68 vested in the local board : — Held, on appeal, by Cotton and Lindley, L.J J. (dis- sentiente Lopes, L.J.), that although s. 74 did not give the board power to order drainage by a combined operation except in the case of existing houses, the general words of s. 76 gave them this power in the case of houses about to be built ; that their approval of the scheme was an order, and that the drain in question was therefore a " drain " and not a " sewer " within the meaning of s. 250, and did not vest in the local board. Bateman v. Poplar Board of Works, 33 Ch. D. 360 ; 56 L. J., Ch. 149 ; 55 L. T. 374— C. A. Notice to Bepair by Inspector — Proof of Authority — Eecovery of Expenses.] — A., the sanitary inspector of S., a metropolitan parish, gave a notice in his own name as inspector to H., an owner of a house, to reconstruct drains, &c., in three days, and afterwards, on default, A. did the work, and the S. vestry took out a summons against H. to recover the expenditure. 1217 METROPOLIS— FesfJT/ and Board of Works, No resolution of the vestry, or of any committee thereof to give the notice was proved, but only a meeting of three members of a sub-committee, who were proved to have met and resolved that the inspector should enter and execute the works himself : — Held, that the notice given by the inspector was bad, and the statute not being complied with, the summons against H. was properly dismissed. St. Leonard's Vestry v. Holm.es, 50 J. P. 132— D. Connecting Hoases with — Sight of Vestry to do Work.] — A builder made drains from certain houses in a road to the boundary of the forecourts of the houses. The road was what is known as a builder's road, made and coated with gravel and ballasted. The footpaths were made with gravel and kerbed with granite. The houses on either side of the road were not com- pleted and inhabited, but the road was open for carriages and foot-passengers. It was lighted by the parish, but had not been taken to as a public road. The vestry made branches from the drains into a sewer which belonged to them and ran along the centre of the road, and for that purpose they opened the road and footway. The builder declined to repay to the vestry the ex- penses incurred thereby: — Held (1), that the road was not the less a street within the defini- tion in s. 250 of the Metropolis Management Act, 1855, and s. 112 of the Metropolis Manage- ment Act, 1862, because it came within the definition of a new street in the last-mentioned section ; (2), that s. 78 of the Metropolis Management Act, 1855, which authorises the opening of the pavement of any street for the purpose of branching private drains into a sewer, applies equally to streets and to new streets ; (3), that, looking to the definition of the word "pave" in s. 112 of the Metropolis Management Act, 1862, the road was paved : — That, consequently, the vestry had opened a part of the pavement of a street, and were en- titled under s. 78 of the Metropolis Management Act, 1855, to recover the expenses incurred by them. St. John's, Sam/psteaA, v. Hoopel, 15 Q. B. D. 652 ; 54 L. J., M. C. 147 ; 33 W. E. 903 ; 49 J. P. 471— D. Deposit of Flans — Mandamus to submit Flans to Metropolitan Board of Works.] — The making and branching of sewers within the district of a vestry or district board is by s. 47 of the Metropolis Management Act, 1862, made subject to the sanction in writing of the vestry or district board being first obtained. But a vestry or district board cannot give such sanc- tion by the provisions of s. 48, without the approval of the Metropolitan Board of Works : — Held, that it is no answer to a mandamus requiring a district board to submit to the Metropolitan Board of Works plans and sections of sewers laid before them in pursuance of s. 47 to aver that the board has refused to sanction the making of the roads in which the proposed sewers are intended to be made ; and that there- fore the district board, having no other objec- tion, it was their duty under s. 48 to submit the plans and sections to the Metropolitan Board of Works. Reg. v. Wandsworth Board of Worhs, 49 J. P. 806— D. Approval of— Costs of Inspection.] — A district board of works has no power under the Metro- 1218 polls Management Act, 1862, if it approve of the plans and sections of sewers proposed to be constructed by a private landowner and branched into the main system, to withhold their sanction in writing to the construction of the same until such private landowner shall pay a sum of money to the board to cover the ex- penses of the Board in supervising such works. Reg. V. Greenwloh Board of Works, 1 0. & E. 236— Day, J. Sweeping Mud into.] — Bys. 205 of the Metro- polis Local Management Act, 1855, it is provided that no scavenger or other person shall sweep, rake, or place any soil, rubbish, or filth, or any other thing into or in any sewer or drain, or use any grate communicating with any sewer or drain . . . and every scavenger who shall so ofEend shall . . . forfeit and pay any sum not exceeding 5Z. Scavengers having swept mud to the side of a street, and forced it by means of water through a grating into a sewer, were con- victed of an offence against the act : — Held, that "mud" came within the meaning of the words in the above section, and that the convic- tion was right. Metropolitan Board of Works V. Eaton or Beaton, 50 L. T. 634 ; 48 J. P. 611 — D. d. Becovery of Expenses. Faving Bates — Covenant to Fay,] — See Land- lord, AND Tenant, III., 3, h. " House " — " Land "— " Owner " — Trustees of Chapel.] — By the term "houses," in s. 105 of the Metropolis Local Management Act, 1855, and the term "land," in s. 77 of the Metropolis Local Management Act, 1862, it is intended to include (with certain exceptions) all the frontage of a new street, so as to make all the owners of the frontage liable to contribute to the expense of paving the new street. The word " house " includes every building which is capable of being used as a human habitation. If a building, which is physically capable of being so used, is prevented, either by common law or statute, from being ever put to such a use, it is exempted from the liability to contribute to the expense. A consecrated church of the Established Church of England is exempted, because, by reason of its consecration, it becomes by the common law for ever incapable of being used as an habitation for man. But a leasehold chapel fronting on a new street, the chapel being vested in trustees, on trust to permit it to be used as a place of re- ligious worship by a congregation of Wesleyans, is a house within the meaning of s. 105, for, by the consent of the landlord, the trustees, and the cestuis que trustent, the trusts might at any moment be put an end to. Wright v. Ingle, 16 Q. B. D. 379 ; 55 L. J., M. 0. 17 ; 54 L. T. 511 ; 34 W. R. 220 ; 50 J. P. 436— C. A. Held, also, that the trustees were the "owners " of the chapel, and as such liable to contribute to the expense of paving the new street. li. "Owner of Land"— Land subject to Cove- nants.] — By the Metropolis Local Management Act, 1855, s. 250, the word "owner" shall mean the person for the time being receiving the rack- rent of the lands or premises in connexion with which the word is used, or who would so receive the same i£ such lands or premises were let at a E E 1219 METROPOLIS— Vestry and Bowrd of Works. 1220 rack-rent ; and by the Metropolis Local Manage- ment Acts Amendment Act, 1862, s. 77 (whioli is to be read as one with the Act of 1855, "owners" of land abutting on any new street are made liable to contribute towards the expenses of paving the same. The appellant, having a strip of land about 4 inches vride and 265 feet in length, abutting upon the north side of a new street, had erected a boundary fence upon the land along its whole extent, under a covenant to erect and for ever after maintain a fence thereon made with his vendor, who was owner of the land adjoining the strip on the north side : — Held, that the appellant was the " owner " of the strip of land within the meaning of s. 250 of the Metropolis Local Management Act, 1855, and therefore liable to contribute towards the expense of paving the new street. Williams v. Wandsworth Board of Works, 13 Q. B. D. 211 ; 53 L. J., M. C. 187 ; 32 W. R. 908 ; 48 J. P. 439— D. New Street in Two Districts— Order for ex- clusive Management by One.] —An order of the Metropolitan Board of Works made under 18 & 19 Vict. c. 120, s. 140, and 25 & 26 Vict. c. 102, s. 86, that a new street in more than one parish or district shall be under the exclusive manage- ment of one vestry or district board for the pur- poses of paving, and the expenses payable by each be divided equally between the two parishes or districts, is valid ; but such order does not entitle the managing vestry or board to require the other vestry or board to pay one-half of the expenses. St. Giles, Carriberwell v. Greenwich Board of WorJiS, 19 Q. B. D. 502 ; 56 L. J., Q. B. 636 ; 36 W. E. 126— D. Stale Demand — Successive Occupier — Statute of Limitations.] — In 1871, a metropolitan vestry apportioned paving expenses on the then owner of a house and made demand, but the sum was not paid. In 1885, a fresh demand was made on W., the new owner, and the justices made an order on W., within six months thereafter : — Held, that there was no Statute of Limitations or other bar to the recovery of the said expenses, and that the order was right. Wortley v. St. "■ torn, 51J. P. 166— D. Exemption — Owners of Land abutting on " Street " — New Street.]— The words " a street " in s. 53 of the Metropolis Management Amend- ment Act, 1862 (25 & 26 Vict. c. 102), include " new streets " as defined by s. 112, as well as old streets. In 1872 a road in the metropolis which had up to that time been a turnpike road ceased to be a turnpike road and became a common highway. In 1883 the vestry of the parish in which the road was, constructed a sewer and apportioned part of the expense of construction on the owner of lands abutting on the road. Previously to 1883 there had been no sewer in this part of the road. Sewers' rates had been levied for five years prior to the 1st of January, 1856, in respect of these lands : — Held, that the case fell under s. 53 and not under s. 52 of the Metropolis Management Amendment Act, 1862 (25 & 26 Vict. c. 102); that the road was a "street" within the meaning of s. 53 as •defined by s. 112 of that act, and that the lands were under the proviso in s. 53 exempt from apportionment. St. Giles, Camberwell v. Weller (6 L. K., Q. B. 168, n.) and Sheffield v. Fulham Board (1 Ex. D. 395) approved. Sawyer V. Paddington Vestry (6 L. R., Q. B. 164) over- ruled. St. John's, Hampgtead v. Cotton, 12 App. Gas. 1; 56 L. J., Q. B. 225 ; 56 L. T. 1; 35 W. R. 505 ; 51 J. P. 340— H. L. (E.) Apportionment of Expenses — Power of Vestry.] — An apportionment by a vestry or district board of the expenses of paving a new street under s. 77 of the Metropolis Management (Amendment) Act, 1862, is not invalid by reason of its being at a higher rate in the case of one piece of land abutting on the street than in the case of another. Such an apportionment, on the true construction of the section, need not be made on any uniform principle, but it is in the absolute discretion of the vestry or board, and can only be questioned on the ground of want of good faith. Stotesiury v. St. Giles, Camberwell, 57 L. J., M. C. 114 ; 59 L. T. 473 ; 53 J. P. 5 — D. Payment out of General Bates— Expenses not enforceable against adjoining Owners.] — In 1876 a local authority caused the footpaths of a new street (within the meaning of the Act of 1855) to be paved, at a cost of 1,425Z., raised out of the general rates, and subsequently repaired them from time to time. Ten years afterwards a resolution was passed at a vestry that these paths should be paved under the powers of s. 105 of the Act of 1855 and s. 77 of the Amendment Act of 1862, and the costs apportioned among the adjoining owners. Upon an objection being taken by an adjoin- ing owner that the local authority, having laid out a substantial sum in making permanent footpaths in 1876, which was then charged to the general rates, were estopped from exercising their power of paving the street again under these sections and throwing the cost upon the adjoining owners : — Held, that the work having been once done the local authority could not, ten years afterwards, throw the burden of paving upon the adjoining owners. St. Giles, Camber- well V. Hunt, 56 L. J., M. C. 65 ; 52 J. P. 132 — D. Payment by Purchaser of Property — Implied Covenant against Incumbrances.] — The expenses of paving a new street apportioned under s. 77 of the Metropolis Management Amendment Act, 1862, are not a charge upon the property in re- spect of which they are payable, and therefore i£ the ovyner sells the property while the expenses are unpaid, and conveys as beneficial ovmer, and the purchaser is compelled to pay such expenses, the purchaser cannot recover the amount so paid from the vendor under the implied covenant against incumbrances contained in the convey- ance by virtue of s. 7, sub-s. (A) of the Con- veyancing and Law of Property Act, 1881. Bgg V. Blayney, 21 Q. B. D. 107 ; 57 L. J., Q. B. 460 ; 59 L. T. 65 ; 36 W. R. 893 ; 52 J. P. 517— D. Payable out of Capital or Income. 1 — A testator bequeathed leasehold houses and other personal property to trustees, in trust, after payment of " all ordinary outgoings for ground rent, repairs, taxes, expenses of insurance, or otherwise," to pay the income to his wife for life, with trusts over. One of the leasehold houses was held by the testator under a lease which threw upon the lessee all " taxes, rates, assessments, and imposi- tions," and, after his death, the sanitary authority 1221 METEOPOLIS— JBates. 1222 having served a, notice under 18 & 19 Vict. c. 120, s. 73, on the occupier of the house, re- quiring the execution of certain drainage works, the trustees of the will employed a contractor to execute the works, and deducted the expense from the income of the tenant for life : — Held, that the expense was payable out of the income of the testator's estate, and not out of the corpus, and that the deduction had been properly made. Crawley, In re, Acton v. Crawley, 28 Ch. D. 431 ; 54 L. J., Ch. 652 ; 52 L. T. 460 ; 33 W. E. 611 ; 49 J. P. 598— Pearson, J. I[. RATES. 1. IN GENERAL. Validity of — Issuing Precept.] — By the Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), s. 158, every vestry and district board shall from time to time " by order under their seal require " the overseers of their parish to levy the sums which such vestry or board may re- quire for defraying the expenses of the execution of the act. By s. 161 the overseers " to whom any such order as aforesaid is issued shall levy the amount mentioned therein according to the exigency thereof " : — Held (diss. Day, J.), that such an order became effective when sealed, and service of it on the overseers was not necessary to authorise them to levy rates, but that rates made by overseers in pursuance of such order, after notice of it having been sealed, were valid. Glen V. Fulham Overseers, 14 Q. B. D. 328 ; 54 L. J., M. C. 9 ; 51 L. T. 856 ; 33 W. E. 165 ; 49 J. P. 519— D. Befasal of magistrate to issue Warrant pending Appeal.] — The rateable value of certain property having been re-assessed at a much higher sum, the owners appealed. Before the hearing of the appeal it was agreed that a special case should be stated for the opinion of the Queen's Bench Division, and that in the mean- time rates should be paid on the former valuation, and these terms were embodied in an order made by a judge on the 23rd March, 1881. In 1883 the overseers applied to the magistrate for a distress warrant for the amount of the rates according to the new assessment, but the appli- cation was refused, on the ground that as the appeal was still pending the overseers were bound by the order of the judge. The overseers then applied to the Queen's Bench Division for a mandamus to the magistrate to issue the war- rant : — Held, that in consequence of the pro- visions of 32 & 33 Vict. c. 67, s. 44, which enacts that, pending any appeal from any new assess- ment, the rate shall be paid according to the new assessment, the judge had no jurisdiction to make the order, and that the consent of the assessment committee to that order did not bind the over- seers. Reg. V. Marsham, 50 L. T. 142 ; 32 W. R. 157 ; 48 J. P. 308— C. A. 2. VALUATION ACTS. Notice of Appeal — Service on Persons other than the Appellant.] — The assessment committee of a union appealed, under s. 32 of the Valuation (Metropolis) Act, 1869, to the general assessment sessions against the valuation list of the respon- dent parish, and against the total gross and rate- able values appearing therein, on the ground that those values were too low, and it appeared from the case stated by the appellants in com- pliance with the rules made under the act that they sought to have the ■ total values increased by showmg that the assessments in the valuation list of a large number of specified hereditaments were too low : — Held, that the appeal did not " relate to the unfairness or incorrectness of the valuation of any hereditament occupied by any hereditaments occupied by any person other than the appellant " within the meaning of s. 33 of the Valuation (Metropolis) Act, 1869 ; that those words applied only to appeals in which it was objected that the valuation of particular hereditaments was unfair or incorrect so far as it affected the assessment of the ratepayers of a parish inter se ; and therefore that the appellants need not serve notice of appeal under s. 33 upon the occupiers of the specified hereditaments. Meg. v. General Assessment Sessions, 17 Q. B. D. 394 ; 35 W. E. 12 ; 50 J. P. 724— D. Supplemental List — Alteration during pre- ceding Twelve Months — Diminution of Income.] — On an appeal from the assessment committee as to a supplemental valuation list under the Valuation (Metropolis) Act, 1869 (32 & 33 Vict, c. 67), evidence of a falling off in receipts of tonnage rates on vessels coming to certain docks during the twelve months preceding the making of the supplemental list when the rates were the same, and which, as compared with former years, shows a continuous and not accidental falling off, is sufficient if not explained or rebutted to show an alteration in the rateable value of the docks during that period within the meaning of s. 46. When such alteration has been established, and it has therefore to be entered in a supple- mental list, the rateable value of the docks is to be ascertained, not by opening up the previous quinquennial or supplemental list, but by assuming the value in the list then in force to be the correct value at the commencement of the twelve months preceding, and by deducting from it the diminution in value from the alteration during that period. Reg. v. East and West India Doalt Company or Pojplar Union, 13 Q. B. D. 364 ; 53 L. J., M. C. 97 ; 51 L. T. 97 ; 48 J. P. 564— C. A. Reversing, 32 W. R. 321— D. Seduction in Value within Year — Dete- rioration not merely Structural.] — Sections 46 and 47 of the Valuation of Property (Metro- polis) Act, 1869, are not confined to or applicable only to structural deterioration in property. Therefore a ratepayer who can show a primS, facie case of reduction in the rateable value of his property from other causes than of a purely structural nature is entitled to call upon the Assessment Committee to appoint a person to make a provisional list, showing the gross and rateable value of his property, as reduced since the making of the valuation list in force. Keg. v. St. Mary, Islington, 19 Q. B. D. 529 ; 56 L. J., Q. B. 597 ; 57 L. T. 270 ; 35 W. B. 664 ; 51 J. P. 789— D. Alteration in Value during Year— Power of Overseers.] — Where a requisition is made to B B 2 1223 MINES AND MINEKALS. 1224 the overseers of a parish to make and send to the assessment committee a provisional list under s. 47 of the Valuation (Metropolis) Act, 1869, containing the gross and rateable value of an hereditament, on the ground that the value has heeu increased or diminished during the year, the overseers are not bound to comply with the requisition if they are of opinion that no such alteration in value has taken place, and a man- damus will not be granted to compel them to do so. Reg. v. St. Mary, Bermondsey, 14 Q. B. D. 351 ; 54 L. J., M. C. 68 ; 33 W. E. 414 ; 49 J. P. 38— D. Special Sessions — Appeal.] — An appeal does not lie to special sessions from the deter- mination of tlie assessment committee on an objection to a provisional list made under s. 47 of the Valuation (Metropolis) Act, 1869. Ful- ham Union v. Wells, 20 Q. B. D. 749 ; 57 L. J., M. C, 112 ; 59 L. T. 103 ; 36 W. K. 858 ; 52 J. P. 663— D. III. TRAFALGAR SQUARE. Right of Public Meeting.] — Semble : — There is no right on the part of the public to occupy Trafalgar Square for the purpose of holding public meetings, but the Commissioners of Works and Public Buildings (in whom the care, control, management, and regulation of the square is vested by 7 & 8 Vict. c. 60, s. 2, and 14 & 15 Vict. i;. 42, s. 22) have power to prohibit the holding of such meetings there. Lewis, Ex pafte, 21 Q. B. D. 191 ; 57 L. J., M. C. 108 ; 59 L. T. 338 ; 37 W. K. 13 ; 52 J. P. 773— D. IV. STAGE CARRIAGES. Use of Manager's Name — Injunction.] — The plaintiff, as manager of an omnibus company, became, under the provisions of the statutes and rules for the regulation of metropolitan stage- carriages, the licensee of their vehicles. Having ceased to be such manager : — Held, that he was entitled to an injunction to restrain the company from continuing to use his name upon the num- ber plates affixed to their carriages. Hodges v. London Tramways Omniiiis Company, 12 Q. B. D. 105 ; 50 L. T. 262 ; 32 W. R. 616— D. MIDDLESEX. Registration of Deeds.] — See Deed and Bond, II. MINES AND MINERALS. 1. In General, 1224. 2. WorUng, 1226. 3. Forest of Lean, 1228. 4. Regulation of Mines, \22'i). 6. Wages, 1230. 1. In Geneeal. Payment of Income Tax on.] — See Eevenub. Winding up of Cost Book Company — Inspec- tion of Books.]— See ante, col. 440. Grant — Reservation of Rent Charger-Per- petuity.] — Where, in a deed of grant of land, there was a clause that a rent-charge should be paid by the purchaser, his heirs or assigns, to the vendor, his heirs and assigns, if the purchaser, his heirs or assigns, should at any time dig and work, &c., any mines, &c., on the property granted : — Held, that the rent-charge was validly created, and the clause not void as violating the rule against perpetuities. Morgan v. Davey, 1 C. & E. 115— Mathew, J. Rent-charge — Minerals raised but not pro- cured on Lands granted.] — An agreement to pay a sum by way of rent-charge or royalty, in respect of minerals which may be raised or obtained by, from or out of any mine or mines, pit or pits, in, upon, or under the property granted, does not entitle the person in whose favour the rent-charge or royalty is created to receive payment in respect of minerals brought up at the mouth of pits upon, but not procured under, the property granted. lb. Royalty—" Shipped for Sale."]— D. [in 1824, agreed with S. for the purchase of an estate, and that the purchase-deed should contain a covenant by D. that he, his heirs and assigns, would pay to S., his executors, administrators, and assigns, the sum of 6«. for each chaldron of coals gotten out of the estate and shipped for sale. The purchase deed was subsequently executed by S., but not by D. D., however, entered upon the land, and he and his devisees and their assigns enjoyed the property. Coal was also got and shipped for sale : — Held, that the execution by D. of a counterpart of the deed contain- ing the covenant must be presumed, and that the words " shipped for sale " in the deed meant coal actually shipped for sale. Witham v. Vane, 32 W. E. 617— H. L. (B.) Reversing, 44' L. T. 718— C. A. Conveyance of Land with Reservation.] — Where the owner conveys land to a person, re- serving the " liberty of working the coal " in those lands, he must be taken to have reserved the estate of coal (unless there are clear words in the deed qualifying that right of property) with which he stands vested at the date of the convey- ance. Hamilton (Jiulie) v. Lnnlop, 10 App. Cas. 813— H. L. (Sc.) Reservation of Minerals in Leases.] — See ante, cols. 1077, 1078. Reservation in Allotment — Granite — Open Working.] — By an Inclosure Act passed in 1812, certain common lands in Wales were allotted, an allotment being made to the king as lord of the manor in respect of his right to the soil. The act gave the Commissioners of Woods and Forests the right to sell the allotment made to the king, subject to the rights of the king to the " mines, ores, minerals, coal, limestone, or matter whatsoever," in or under the same ; and con- tained a proviso reserving to the king his rights to any " mines, ores, minerals, coal, limestone. 1225 MINES AND MINERALS. 1226 or slate" in the common land, and all rights and royalties previously belonging to the king, and gave a right of compensation to the owners of the land for any damage done in digging, raising, and carrying away such mines,, etc. : — Held, that the word " minerals " included granite, and (Fry, L. J., doubting) that the Crown was entitled to win the granite by open work- ings. Att.r Gen. v. Welsh Oranite Company, 35 W. R. 617— C. A. Lease of— Eight to Spoil Bank.] — The lessee of a coal mine, under covenant to remove the spoil bank at the end of his term, has a property in the material of the hank, giving him a right of action against a stranger removing part of it for brick making. Roiinson \. Milne, 53 L. J., Ch, 1070— North, J. Agreement for Mining Lease — Lessee in Pos- session — Payment of Boyalties into Court.] — The plaintiffs commenced an action against the defendant for specific performance of an agree- ment for a lease of a coal mine by the plaintiffs to the defendant at a royalty, as the plaintiffs alleged, of \(id. per ton. The "defendant counter- claimed to have specific performance with a royalty of less amount. The defendant was in possession, and raising and selling large quan- tities of coal, but he alleged that he had ex- pended on the mine more than the value of the coal raised. He also brought an action against the plaintiffs in the Queen's Bench Division to obtain damages for misrepresentations alleged to have been made to him for the purpose of in- ducing him to enter into the agreement, which action was still pending. The plaintiffs moved for an interlocutory order that the defendant might be ordered to pay into court the amount of royalties at Wd. per ton on the coal he had raised, but the court refused the motion : — Held, on appeal, that although it would not be right, while the right of royalty was in dispute, to order the defendant to pay into court the amount of royalties at the rate claimed by the plaintiffs, he ought to be ordered to pay in the amount of royalties at the rate which he him- self alleged to be the one agreed upon, and that as his carrying away coal diminished the value of the property, he would not have the usual option of giving up possession instead of paying money into court. LevAs v. James, 32 Ch. D. 326 ; 56 L. J., Ch. 163 ; U L. T. 260 ; U W. E. 619 ; 50 J. P. 423— C. A. Mortgage — Accounts — Value of Coal Im- properly Worked — Deductions— Costs of Sever- ance and of Eaising.] — The plaintiffs were mortgagees in possession of a colliery, and were also treated by the court as lessees of the same colliery under a lease for a fixed term of years at a rent and a certain royalty for all coal gotten. The lease contained covenants to leave pillars of coal to support the roof and not to work or remove the pillars. The mortgagees underlet the colliery and gave their sub-lessees permission to work and remove the pillars, which they did : — Held, that in taking the accounts as against mortgagees in possession, the mortgagees having allowed their sub-lessees to take the coal, must be treated as having taken it them- selves, and, having so taken it wrongfully in breach of the covenants in the lease, must be charged, not with the amount of the royalty reserved, but with the full value of the coal. subject to a deduction for the costs of bringing it to the surface, but not for the costs of severance ; and the foreclosure, which had been made absolute before the appeal was heard, was reopened. Livingstone v. Ilawyards Coal Com- pany (5 App. Gas. 25) distinguished. Taylor v. Mostyn, 33 Ch. D. 226 ; 55 L. J., Ch. 893 ; 55 L. T. 651—0. A. Compulsory Purchase of Surface — Whether Clay is included in "other Minerals,"] — The 18th section of the Waterworks Clauses Act, 1847 (10 & 11 Vict. c. 17), provides that "the undertakers shall not be entitled to any mines of coal, ironstone, slate, or other minerals under any land purchased by them." The appellants, by virtue of the act and a conveyance contain- ing a reservation of the " whole coal and other minerals in the land in terms of the Waterworks Clauses Act, 1847," purchased from the respon- dent a parcel of land for the purpose of erecting waterworks. Under the land was a seam of valuable brick clay. The respondent worked this clay in the adjoining land, and having reached the appellants' boundary, claimed the right to work out the clay under the land pur- chased by the appellants : — Held (Lord Herschell, dissenting), that common clay, forming the sur- face or subsoU of land, was not included in the reservation in the act, and that the appellants were entitled to an interdict restraining the respondent from working the clay under the land purchased by them. Glasgow (^Lord Pro- vosf) V. Farie, 13. App. Cas. 657 ; 58 L. J., P. C. 33 ; 60 L. T. 274 ; 37 W. R. 627— H. L. (Sc.) Injury hy Laying Sown Pipes — Alluvial Deposit worked at a Profit.] — In an action brought by J., the owner in fee simple of certain mines of coal, culm, iron, and all other mines and minerals (except stone quarries) against N., a rural sanitary authority, for damages for injury done by reason of N. having constructed certain sewage pipes under the provisions of the Public Health Act, 1875, in respect of his interest in a certain alluvial deposit, being a pure clay of superior quality, used for the manufacture of bricks, underlying the surface : — Held, that J. was entitled to recover, inasmuch as the alluvial deposit came within the reservation of minerals. Jersey (^EarV) v. Neath Union, 52 J. P. 582 — Day, J. Affirmed 22 Q. B. D. 555 ; 37 W. E. 388 ; 53 J. P. 404— C. A. 2. Working. Tinder Railway.] — See Railway. Injury to Canal caused by Working.] — See Watbb. Damage to Surface — Inclosure Act — Manorial Eights.] — An inclosure act enacted that allot- ments should be made to the persons having a right of common upon the waste of the manor, that is, to the owners of every separate ancient dwelling-house within the manor ; that all rights of common should be extinguished ; and that the allotments should be held and enjoyed by the allottees by the same tenure and estates as the respective dwelling-houses : provided that nothing should prejudice, lessen, or defeat the title and interests of the lords of the manor to and in the royalties, but that the lords 1227 MINES AND MINERALS. 1228 and their successors as owners of the royalties should for ever hold and enjoy all " rents, courts, perquisites, profits, mines, power of using or granting wayleave, waifs, estrays, and all other royalties and jurisdictions whatsoever " to the owners of the manor appertaining " in as full, ample, and beneficial manner to all intents and purposes as they could or might have held and enjoyed the same in case this act had not been made." Provided further, that in case the lords or any persons claiming under them should work any mines lying under any allot- ment, or should lay, make, or use any way or ways over any allotment, such persons so working the mines, or laying, making, or using such way or ways should make " satisfaction for the damages and spoil of ground occasioned thereby to the person or persons who shall be in posses- sion of such ground at the time or times of such damage or spoil " ; such satisfaction to be settled by arbitration and " not to exceed the sum of 51. yearly during the time of working such mines or continuing or using such way or ways for every acre of ground so damaged or spoiled." At the time of passing the act there were no customs which, enlarged or cut down the common law rights of the lords to work the minerals under the wastes of the manor. Under the act an allotment was made in 1772 to a commoner in respect of an ancient freehold dwelling-house. At that time no house had been built upon the allotment. More than twenty years after a house had been built upon it, the minerals underlying it were worked by lessees of the lords of the manor so as to cause the surface of the land to subside, wherdby the house was damaged to an amount exceeding the sum recoverable under the proviso. The land would have subsided if there had been no house. An action for damages having been brought against the lessees by the allottee's successor in title and by his tenant in possession : — Held, that upon the true construc- tion of the act, the proviso for satisfaction did not apply to damage from subsidence ; that there was nothing in the act giving the lords the right to let down the surface ; that the plaintiffs were entitled to have the house and land supported by the minerals, and to recover damages for the subsidence. Love v. £ell, 9 App. Cas. 286 ; 53 L. J., Q. B. 257 ; 51 L. T. 1 ; 32 W. E. 725 ; 48 J. P. 516— H. L. (E.) Successive Subsidences — Statute of Limita- tions.] — In 1868, the defendants worked out a seam of coal in their mine, and thereby caused certain cottages of the plaintiff to subside. The defendants repaired the damage. The mine was no longer worked, and the excavation remained as it was until 1882, when there occurred a second subsidence, which was ad- mitted to be the result of mining operations in 1868, and caused injury to the plaintiff's cottages, whereupon he sued the defendants for damages : — Held (Lord Blackburn diss.), that on the occurrence of the second subsidence a cause of action accrued to the plaintiff, and therefore that his right to maintain an action in 1883 was not barred by the Statute of Limita- tions. Barley Main Colliery Company v. Mit- chell, 11 App. Cas. 127 ; 55 L. J., Q. B. 529 ; 54 L. T. 882 ; 51 J. P. 148~H. L. (E.). Affirm- ing 32 W. E. 947— C. A. Compensation Moneys— Capital or Income — Successive Tenants for Life— Eemaindermen.]— Minerals were devised by will upon trust for B. for life without impeachment of waste, with remainder on trust for the defendant for life without impeachment of waste, with remainders over. During the life, and also after the death of B., part of these minerals were won by instroke by the owners of the adjoining mines, who had trespassed innocently and paid compensation moneys for so doing : — Held, that the moneys paid in respect of the minerals so won during the respective lives of B. and the defendant, belonged to the estate of B. and to the defendant respectively. Barrington, In re, Qamlen v. Lyon, 33 Ch. D. 523 ; 56 L. J. Ch. 175 ; 55 L. T. 87 ; 35 W. E. 164— Kay, J. The minerals were leased by the testator. A railway passed over a portion of the lands under which they lay, and after the death of B. the lessee gave the railway company notice of his desire to work the minerals lying under and adjoining a portion of the railway. The com- pany gave a counter notice that these minerals were required for the support of the railway, and ultimately paid compensation money, part of which was apportioned as paid in respect of the lessor's interest : — Held, that as the minerals in respect of which the compensation money had been paid were not of such extent that they could not possibly have been got during the life of the existing tenant for life, the defendant, as such tenant for life, was entitled to such appor- tioned part of the compensation money under s. 74 of the Lands Clauses Consolidation Act, 1845. Ih. Fixtures — Bemoval — Tenant for Life of Mines and Collieries — Eemainderman.] — A tenant for life of real estate, who was entitled to hold and enjoy the working stock and plant of certain iron mines and collieries situate on the estate, and carry on such iron mines and collieries, erected on the estate, machinery, &c., blast furnaces, and a railway of considerable length connecting the mines and collieries. On his death the question arose whether, in an account between his executors and the remainderman, the former should be credited with the value of the machinery, &c., or whether the same passed to the remainderman as things annexed to the soil : — Held, that the interest of the tenant for life was a right of enjoyment in the chattels, and not a right to carry on a business ; and that therefore his position with respect to the trustee was that of a donee of consumable chattels : — Held, also, that the machinery annexed to the soil for the purpose of rendering the minerals merchantable, if such machinery was capable of being removed therefrom by disturbing the soil without destroying the land, was machinery which could not be said to be bo attached to the land as to become part of it and belong to the owner of the land, but was to be deemed to be trade fixtures which passed to the executor as personalty, on the authority of Wahe v. Hall (8 App. Cas. 195). Ward v. Bndley {Coimtess), 57 L. T. 23— Chitty, J. 3. Forest of Dean. Forfeiture of Gale.]— An application for a gale in the Forest of Dean must be made at a time 1229 MINES AND MINERALS. 1230 when the gale is vacant. Where a gale had become liable to be forfeited under s. 29 of the Forest of Dean Act, 1838, for nou- working : — Held, that the forfeiture vyas not complete nor the gale become vacant until the Crown had intimated its intention of enforcing the for- feiture. Actual resumption of possession by the Crown is not necessary to complete the for- feiture of a gale, and this independently of the Queen's Eemembrancer Act (22 & 23 Viot. c. 21), s. 25. James v. Ymmg, 27 Ch. D. 652 ; 53 L. J., Ch. 793 ; 51 L. T. 75 ; 32 W. E. 981— Korth, J. i. Regulation op Mines. Gunpowder — Conveyance of — " Case or Canis- ter."]— By the Metalliferous Mines Act, 1872 (35 & 36 Vict. c. 77), s. 23, sub-s. 2, " Gunpowder or other explosive or inflammable substance shall not be taken into the mines except in a case or canister containing not more than four pounds : " — Held, that the word " case " as used in the section must be taken to mean something solid and substantial in the nature of a canister, and that a bag of linen or calico was not such a " case." Foster v. Diphwys Casson Slate Com- pany, 18 Q. B. D. 428 ; 56 L. J., M. C. 21 ; 51 J. P. 470— D. Compliance with General Bules when Beasonably Practicable.] — The Coal Mines Eegulation Act, 1872, by s. 51 enacts that certain general rules shall be observed so far as is reasonably practicable, and among them that gunpowder or other explosive or inflammable substance shall not be used in the mine under- ground, during three months after any inflam- mable gas has been found in any such mine, if the inflaromable gas issued so freely that it showed a blue cap on the flame of the safety- lamp, except when the persons ordinarily employed in the mine are out of the mine " or out of the part of the mine where it is used " : — Held, that the expression "reasonably practi- cable" did not relate to the carrying on of the mine as a profitable concern, but to physical or engineering difficulties in the way of carrying out the rules, and that the expression " part of the mine," did not mean the neighbourhood where the gunpowder would be used, but such a part of the mine as could be treated under the statute as a separate mine. Walls or Wales v. Thomas, 16 Q. B. D. 340 ; 55 L. J., M. C. 57 ; 55 L. T. 400 ; 50 J. P. 516 ; 16 Cox, C. C. 128— D. Notice by Inspector of Sanger — Objec- tion of Owner — Powers of Arbitrator.] — In an arbitration under s. 46 of the Coal Mines Eegula- tion Act, 1872, the duty of the arbitrator is limited to determining whether the matter com- plained of by the inspector is dangerous and ought to be remedied, and he has no power to determine what is the proper remedy, or to direct that any particular remedy be adopted. Hom,e Secretary and Fletcher, In re, 18 Q. B. D. 339 ; 56 L. J., Q. B. 177 ; 35 W. E. 282 ; 51 J. P. 707— 0. A, Check-weigher, Appointment of — Person " Employed in the Mine."] — By the Coal Mines Eegulation Act, 1872, s. 18, the persons employed in a mine, and paid according to the weight of the mineral gotten by them, may, at their own cost, station a check-weigher at the place appointed for the weighing of such mineral, in order to take an account of the weight thereof on behalf of the persons by whom he is so stationed ; and "the check-weigher shall be one of the persons employed either in the mine at which he is so stationed, or in another mine belonging to the owner of that mine." The plaintiff, a check-weigher, duly appointed under s. 18, received a fortnight's notice to quit his employment from the men employed in the mine. Before the notice expired the men held a fresh election, at which the plaintiff (with others) presented himself as a candidate, and was again appointed : — Held, that the true construction of 3. 18 was to limit the class of persons from whom the men might appoint a check-weigher to per- sons employed in the mine by the mine-owner ; that the plaintiff ceased to have any employ- ment under the mine-owner when he was first appointed check-weigher by the men ; and therefore that his second appointment was in- valid. SopMnson v. Catint, 14 Q. B. D. 592 ; 54 L. J., Q. B., 284 ; 33 W. E. 522 ; 49 J. P. 550— D. 5. Wages. Payment by Weight of Mineral— Mode of determining Deductions — Mineral contracted to be gotten.]— By the Coal Mines Eegulation Act, 1872, s. 17, where the amount of wages paid to persons employed in a mine to which the act applied depends on the amount of mineral gotten by them, such persons are to be paid according to the weight of the mineral gotten by them, subject to deductions in respect of, among other things, "stones or materials other than minerals contracted to be gotten," such deductions to be determined by the banks- man or weigher and check-weigher (if there be one). The plaintiffs worked in the defendants' colliery under a contract which declared that the " mineral contracted to be gotten " should be coal of a certain size, which was to be paid for at Is. 6d. per ton, that heading slack should be paid for at Id. per ton, and that no other slack should be paid for. The coal was weighed close to the pit's mouth in the presence of the weigher and check-weigher, and was then carried to a distance and thrown on a screen, and the weight of the slack which passed through the screen was ascer- tained by a person in the defendants' employ. Wages were paid according to the weight of the coal as ascertained at the pit's mouth after de- ducting therefrom the weight of the slack which had gone through the screen. In an action to recover the difference between the wages so ascertained and wages computed on the full weight of coal taken by the check-weigher at the pit's mouth : — Held (Fry, L. J., dissenting), that the mineral contracted to be gotten within the meaning of the statute was coal, and that slack being a part of such coal, deductions in respect of it were unauthorised ; that so much of the contract as related to such deductions was void, and that the plaintiffs were entitled to recover. Bourne or Browne v. Netherseal Colliery Com- pany, 20 Q. B. D. 606 ; 57 L. J., Q. B. 306 ; 59 L. T. 751 ; 36 W. E. 405 ; 52 J. P. 453— C. A. Affirmed 14 App. Cas. 228— H. L. (E.) 1231 MISTAKE. 1232 MISREPRESENTATION. See FEAUD. MISTAKE. Ground of Bectification of Seed.] — See Deed AND Bond. Bectification — Bes judicata — Money paid under Compulsion of law.] — After money has been paid under a judgment founded on the construction of an agreement, an action to rectify the agreement, on the ground that such construction was contrary to the intention of all parties, is barred. CairA v. Moss, 33 Ch. D. 22;; 55 L. J., Ch. 854 ; 55 L. T. 453 ; 35 M^ E. 52 ; 5 Asp. M. C. 565— C. A. By one Party as to Material Term — Written Agreement.] — After negotiations for a lease of certain premises had been for some time pending, E. , who was acting in the matter on behalf of G., the intending lessor, wrote a letter to M., the intended lessee, offering a lease at a rent of 33Z. 10«. yearly, which was immediately accepted in writing by M., and a lease at that rent was afterwards prepared and executed by G. and M. G. afterwards brought an action in the County Court to have the agreement and lease rectified by inserting a'il. V)s. as a yearly rent, or in the alternative that the agreement and lease might be cancelled : — Held, that the sum of 33Z. 10«. had been inserted by mistake in E.'s offer, and in the subsequently-prepared lease, and that the offer had been accepted and the lease taken by M. with knowledge of the mis- take ; and therefore the court while holding that it was not a case for re-formation of the contract, directed the lease and the agreement to be de- livered up to be cancelled. Chm v. M'Carthy, 13 L. E., Ir. 304— Flanagan, J. Effect on Contract or Seeds — Bectification or Cancellation,] — Where there is mutual mistake in a deed or contract the remedy is to rectify by substituting the terms really agreed to. Where the mistake is unilateral the remedy is not recti- fication but rescission, but the court may give to a defendant the option of taking what the plain- tiff meant to give'in lieu of rescission. Paget v. Marshall, 28 Ch. D. 255 ; 54 L. J., Ch. 575 ; 51 L. T. 351 ; 33 W. E. 608 ; 49 J. P. 85— V.-C. B. Plaintifl: wrote a letter offering to the defen- dant to grant a lease to him of a portion of a block of three houses, consisting of the first, second, third, and fourth floors of all three houses, at a rent of 500Z. a-year. Defendant wrote in answer, accepting the offer ; and a lease was executed whereby all the upper floors of the block were demised by the plaintiff to the de- fendant at a rent of 500Z. Plaintiff alleged that the first-floor of one of the houses was in- cluded in the offer, and in the lease, by mistake, and that he always intended to reserve such first-floor for his own use. Defendant denied that he accepted the offer, or executed the lease, under any mistake. The court having found upon the evidence that a common mistake was not sufSclently proved, but that mistake on the part of the plaintiff was, gave judgment for rescission with an option to the defendant to accept rectification instead. IT). Rescinding Order hy Consent.] — See Elsas v. Williams, post, Peacticb (Oedbes). Of law— Money paid under— Becovery back of. ] — The doctrine that money paid under a mis- take cannot be recovered back unless the mistake be one of fact, applies even though the person receiving the payment be one of the persons authorising it to be made. Miles v. Sootting, 1 C. & B. 491 — Stephen, J. See also Hooper v. Exeter (^Mayor'), and Plater v. Biurnley (Mayor'), post, col. 1233. Money paid to Trustee in liquidation — Bepayment.] — Where money has been paid to the trustee in bankruptcy or liquidation under a mistake whether of fact or of law, the court wiU order it to be repaid, provided that no injury or injustice accrue to any one by reason of such order. Simmonds, Ex parte, Carnac, In re, 16 Q. B. D. 308 ; 55 L. J., Q. B. 74 ; 64 L. T. 439 ; 34 W. E. 421— C. A. Where the money so paid had been already distributed in dividends, the court ordered the money to be repaid out of sums subsequently coming to the hands of the trustee. lb. B., who was one of the trustees of a vrill and was also beneficially entitled to a share in the testator's estate, acting under a power of sale contained in the will, sold a portion of the estate and appropriated to his own use more than his share of the purchase-money. He afterwards went into liquidation, and an action was insti- tuted for the administration of the testator's estate. In the course of the action further portions of the estate were sold, and out of the . purchase-moneys arising from -these sales a sum of money was paid to the trustee in the liquida- tion of B. in respect of his shares thereof : — Held, that inasmuch as B. was not entitled to receive any of the purchase-money arising from the later sales until he had made good the sum which he had appropriated beyond his own share out of the proceeds of the first sales, the payment to his trustee in liquidation was made under a mistake of law ; and, in analogy to the rule in bankruptcy laid down in James, Ex parte (9 L. E., Ch. 609), and Simmonds, Ex parte (supra), the court ordered B.'s trustee in liquidation to refund the sum so paid to him. Brow7i, In re, Dixon v. Brown, 32 Ch. D. -597 ; 55 L. J., Ch. 556 ; 54 L. I. 789— Kay, J. Money had and received — Bight to Becall — Privity of Parties.] — E. instructed his agent at A. to remit money to a bank at H. The agent paid the money into plaintiffs' baiik at A., with instructions to make the remittance. By mis- take the money was paid into the defendants' bank, where E. was a customer, and being in- debted to the defendants, the money was placed to his credit in reduction of the debt. On the following day the defendants were informed of the mistake, and were requested to pay the money into the bank at H., which they refused to do, on the ground that the money had been appropriated :— Held, that there was direct privity between the plaintiffs and the defen- 1233 MONEY COUNTS. 1234 dants, and that the plaintiffs were entitled to recover the money from the defendants. Colonial £anh v. Exchange BanJt of Yarmouth, 11 App. Cas. 84 ; 55 L. j., P. C. 14 ; 54 L. T. 256 ; 34 W. E. 417— P. C. MONEY COUNTS. Account stated — ^What is — Where stated — Anthority of Agent.] — The plaintifE's solicitor, who carried on business within the jurisdiction of the Mayor's Court, wrote to the defendant demanding payment of 11. 6«. 6(?. for goods sold and delivered to him by the plaintiff. Neither of the parties resided or carried on business, nor was the contract entered into, within the juris- diction. The defendant, in a letter written to the plaintifE's solicitor — posted outside, but re- ceived within the jurisdiction — admitted that he owed 5Z. 6«. 6d. to the plaintifi. The plaiutifE having brought an action in the Mayor's Court to recover hi. 6«. &d. on an account stated, the defendant obtained a writ of prohibition : — Held, that the admission of the defendant and the bringing of the action amounted to an ac- count stated ; that the account was stated within the jurisdiction of the Mayor's Court, and that the plaintiff's solicitor was his agent to receive the admission and to state the account, and that therefore the Mayor's Court had jurisdiction to try the action. Chrundy v. Townsend, 36 W. R. 531— C. A. Money had and Beceived — Compulsory Pay- ment — Overpayment of Water-rate.]— The de- fendants, as sanitary authority for the borough of B., had demanded from the plaintiff, and the plaintiff had paid, a water rate of 8Z. Xhs. id., such rate being calculated on the " gross rental " of the plaintiff's premises. The plaintiff, con- tending that such rate ought to have been assessed on the "rateable value " only, brought an action in the county court to recover the difference overpaid. The defendants had no power to dis- train for the rates, but they had a power to stop the water supply for non-payment ; they had not stopped the water supply, and had not threatened to do so. The county court judge held that the payment was not a voluntary one, and could be recovered back, on the ground that the defendants had a power to stop the water supply : — Held, that the payment was a volun- tary one, and could not be recovered back. Mater v. Burnley (^Mayor"), 59 L. T. 636 ; .S6 W. E. 881— D. Mistake — ^Voluntary Payment— Harhonr Sues.] — The corporation of E. exacted harbour dues from the plaintiff in respect of exempted articles. The plaintiff paid in ignorance of the exemption : — Held, that the plaintiff was en- titled to recover back the money so paid. Hooper v. Exeter (Mayor"), 56 L. J., Q. B. 457 — D. Money in hands of Agent— Announce- ment that Dividend would be paid— Revocation hy Principal — Liability of Agent.]— Agents in London of a foreign government, having money in their hands for the payment of a dividend on a loan, on the 22ud May advertised that the coupon due on the 1st June would be paid in full ; but on the 1st June, being advised by the foreign government, they advertised that the payment would be made less 5 per cent. An action having been brought by a bondholder against the agents : — Held, that the announce- ment was not an admission of assets which gave the bondholders a right of action for money had and received. Henderson v. Rothschild, 56 L. J., Ch. 471 ; 56 L. T. 98 ; 85 W. E. 485 — C. A. Affirming 83 Ch. D. 459— V.-C. B. Duty of Agent to account for and pay over Money to Principal.] — A person who has received money as agent is bound not only to account for the same, but also to pay it over to his principal when requested so to do ; and, in an action for money had and received, is charge- able with interest on the amount so received from the date of the refusal to pay it over. Pearse v. Green (1 Jac. & W. 135), followed. Harsant v. Elaine, 56 L. J., Q. B. 511— C. A. Waiver of Tort.] — See Oloucestershira Banking Co. v. Edwards, ante, col. 5. Illegal Consideration.] — ^Where a person is, upon conviction of a criminal offence, re- quired to find a surety for his good behaviour, and by agreement with his surety deposits money with him, he cannot afterwards sue for the ■amount as money had and received. The illegal object is sufficiently complete where the deposit has been made and the security executed, and the principal cannot, by repudiating the trans- action before the security is forfeited and the money applied as an indemnity, recover the money. Herman v. Jeuchner or Zeuchner, 15 Q. B. D. 561 ; 54 L. J., Q. B. 340 ; 53 L. T. 94 ; 33 W. E. 606 ; 49 J. P. 502— C. A. Eeversing 1 C. & K. 364— Stephen, J. Money paid — Goods lawfully seized for another's Debt.] — The sheriff had seized goods for the debt of the defendant, and the claim of the plaintiff to the goods was barred upon inter- pleader, but the defendant had bound himself by admission as between the parties that the goods were the plaintiff's, and had agreed to pay a sum of money in consideration of the seizure : — Held, that the plaintiff was entitled to recover that sum from the defendant. Edmunds v. Wallingford, 14 Q. B. D. 811 ; 54 L. J., Q. B. 305 ; 52 L. T. 720 ; 83 W. E. 647 ; 49 J. P. 549— C. A. AffiiTaing 1 C. & B. 334— Huddleston, B. Occupier of Part of Holding — Pay- ment of Rent under Threat of Distress.] — A., who held certain lands under lease at a rent, gave possession of a small part thereof to B. on the terms that he was to hold rent free, and make certain expenditure in buildings, which was done. C. afterwards acquired the residue of the holding from A., subject to this arrange- ment, and for many years paid the entire rent reserved by the lease. One year's rent being due, the landlord brought an ejectment, and B. paid the rent claimed in order to save the lands from eviction : — Held, that he was entitled to recover the amount from C. in an action for money paid. Murphy v. Davey, 14 L. E., Ir. 28 —0. P. D. 1235 MOETGAGE. 1236 Voluntary Payments.] — It has always been clear that a purely Toluntary payment cannot be recovered back. Voluntary payments may be divided into two classes. Sometimes money has been expended for the benefit of another person under such circumstances that an option is allowed him to adopt or decline the benefit ; in this case, if he exercises his option to adopt the benefit he will be liable to repay the money expended ; but if he declines the benefit he will not be liable. But sometimes the money is expended for the benefit of another person under such circumstances that he cannot help accepting the benefit, in fact that he is bound to accept it ; in this case he has no opportunity of exercising any option, and he will be under no liability. Leigh v. BioTtesffn, 15 Q. B. D. 64 ; 54 L. J., Q. B. 20 ; 52 L. T. 791 ; 33 W. R. 539— Per Lord Esher, M. R. MONEY PAID INTO COURT. See PRACTICE. II. III. IV. V. VI. VII. VIII. IX. X. XI. MORTGAGE. The Contract. 1. FaHies, 1236. 2. Wliat Property included in, 1237. 3. Hffect of Fraud on. — See Feaxtd. Eqititablb Moetgage, 1241. Assignment and Teansfee, 1244. Release and Reconveyance, 1245. Sevbeal Moetgages. 1. TacMng and Consolidation, 1246. 2. Priority, 1248. 3. Notice of Prior Mortgage, 1255. Rights op Moetgagees and Moet- GAGOES. 1. Power of Sale, 1258. 2. Leases — Distresses, 1261. 3. Mortgagees in Possession, 1264. 4. In other Cases, 1265. Remedies foe Non - Payment of Moetgage Money. 1. Foreclosure, 1266. a. Parties, 1266. h. Practice, 1267. c. Costs, 1275. 2. In other Cases, 1277. Redemption, 1279. Payment off, 1282. When Requieing Registeation.— See Bills of Sale, I., 1, Devise of Peopeety subject to Moetgages— Locke King's Act. —See Will. XII. Of Ships,— &e Shipping. I. THE CONTBACT. 1. PARTIES. By Client to Solicitor.] — See Solicitoe (Re- lation to Clients). By Companies.]- /See Company, IV., 2. To Building Societies.] — See Building Society, II. Power of Executor to Mortgage.] —See Exe- cutoe and Administbatob, I., 2. To Industrial Society.] • Society. • See INDUSTEIAL Married Woman.] — When a married woman executes a mortgage there is no obligation on the mortgagee to inquire whether a settlement was made on her marriage. Lloyd's Banking Co. V. Jones, 29 Ch. D. 221 ; 54 L. J., Ch. 931 ; 52 L. T. 469 ; 33 W. R. 701— Pearson, J. In joint Names — Joint Tenancy or Tenancy in Common — Joint Account Clause.] — Mortgages in fee were taken In the name of three sisters as joint tenants, each of the deeds containing a clause by which it was declared that the mort- gage money belonged to the mortgagees on a joint account in equity as well as at law. The money advanced on the security of the mort- gages formed part of the proceeds of the estate of a brother, to which the three sisters were, under his will, entitled as tenants in common. Having regard to this fact and the other facts in evidence : — Held, that notwithstanding the in- sertion of the joint account clause the mort- gagees were entitled to the mortgage money as tenants :in common. Jachson, In re. Smith v. Siithorpe, 34 Ch. D. 732 ; 56 L. J., Ch. 593 ; 56 L. T. 562 ; 35 W. R. 646— North, J. Surviving Partner — Mortgage to secure prior Debt.] — A firm consisting of two partners, had secured the balance of their current account with a bank by the deposit of certain deeds. One of the partners died, and the bank requiring further security from the surviving partner to secure the balance then due to them on the ac- count, the surviving paitner deposited with the bank a contract for the purchase of some lands as further security, the contract being part of the assets of the firm : — Held, that the surviving partner was entitled to mortgage the assets of the partnership for a past debt. Clongh, In re, Bradford Banking Company v. Cure, 31 Ch. D. 324 ; 55 L. J., Ch. 77 ; 53 L. T. 716 ; 34 W. R. 96— North, J. Partner — Mortgage of Share — Bight of Mort- gagee to Account.] — When a partner mortgages his share in the partnership and the mortgagee brings an action to realise his mortgage, the proper order is to direct an account of what the mortgagor's interest in the partnership was at the date when the mortgagee proceeded to take possession under his mortgage, i.e., at the date of the writ ; but if a dissolution of the partner- ship has previously taken place, the date of the dissolution is the date at which the account is to be taken. Whetham v. Bavey, 30 Ch. D. 574 ; 53 L. T. 501 ; 33 W. R. 925— North, J. 1237 MOKTGAGE— T/je Contract. 1238 Implied Power to Mortgage — WUl — Trustees.] — J. W, by will devised real property upon trust for sale when and as the trustees should think necessary for the purposes of his will. The pur- poses of the will required under certain circum- stances the raising of money. B., the trustee of the will, executed mortgages of the trust es- tate, received the mortgage moneys, and applied them to his own use. Subsequently some of the beneficiaries under the will brought an action against the trustees to recovej certain moneys which they alleged had been received by B. as trustee of the said will. The moneys so claimed included the sums raised by the disputed mort- gages. Judgment was recovered in the said action for the whole sum claimed. Execution was levied, and produced 1,300?., which was not enough to pay the whole of the moneys claimed other than the mortgage moneys. New trastees of the will had been appointed, and the new trustees and beneficiaries brought this action against the mortgagees to set aside the mort- gages. A foreclosure action by the mortgagees was heard at the same time : — Held, that the will contained no implied power to mortgage, and that the mortgages must be set aside, but only on the terms of the plaintifEs paying to the mortgagees a due proportion of the 1,300Z. re- covered from B. Walker v. Soutliall, 56 L. T. 882— North, J. By Tenant in Tail in Bemainder — Base Fee.] — In 1841 Lord H., being entitled in remainder (subject to the existing Bfe estate of Lord D.) as tenant in tail to two undivided third parts of certain hereditaments, mortgaged his interest in the property to J[. D. In 1842 Lord H. became bankrupt. At the date of his bankruptcy the statute in force was 6 Geo. 4, c. 16, as amended by the Fines and Kecoveries Act (3 & 4 Will. 4, c. 74). No disentailing deed was executed by the commissioners in bankruptcy pursuant to s. 64 of that statute ; but in 1872 Lord H. executed a disentailing deed. In 1878 Lord D., the tenant for life, died. The plaintiff was a sub-mortgagee from M. D., and brought this action to realise his security : — Held, that the mortgage by Lord H., the tenant in tail in re- mainder, conferred upon the grantee, not merely an estate for the life of the grantor, but a base fee, voidable by the entry of the issue in tail ; that, notwithstanding the intervening bank- ruptcy, the subsequent disentailing deed by the tenant in tail operated to confirm the base fee ; and that, therefore, the plaintiff was entitled under his security, to a base fee, to continue so long as there should be issue of Lord H. who would have succeeded under the entail. Hanltey V. Martiv, 49 L. T. 560— Kay, J. 2. WHAT PROPERTY INCLUDED IN. "Fixtures" — What are.] — A house fitted up for and intended to be used as a club was mort- gaged with all fixtures therein : — Held, that in determining what articles were included as " fix- tures," regard must be had to the intentions of the parties, the one in mortgaging and the other in taking a security for the sum advanced ; and that mch things as were substantially part of the house so that they could not be removed Vfithout depriving the house of what was in- tended to be used with it must be regarded as fixtures. Smith v. Macliire, 32 W. K. 459 — Pearson, J. Lease by Mortgagor after Mortgage — Rights of Tenant.] — A mortgagor in possession of premises let them to a tenant who brought on to them certain trade fixtures. The mortgagee subsequently entered and sold the premises under the power of sale contained in the mortgage : — Held, that the fixtures did not pass under the mortgage, but remained the property of the tenant. Sanders v. Davis, 15 Q. B. D. 218 ; 54 L. J., Q. B. 576 ; 33 W. R. 655— D. Belts connecting Machinery.] — By a registered deed made in 1875, the owners of a mill mortgaged in fee to the plaintifEs, the mill, together with all the engines, plant, machinery, and gear described in the schedule. The schedule included certain driving belts which connected the power machinery with certain machines, which were so afiSxed as to be part of the realty. The machines could not be worked without the belts, which would only fit other machines of nearly the same size. These belts were passed round the shafting and then laced together and could not be removed from the shafting without being unlaced. They could be slipped off the machines when the machines and shafting were not in motion. The mortgage contained no power to deal with the belts separately from the freehold. The defendant, a trustee in bankruptcy of one of the mortgagors, removed the belts. In an action against him by the plaintifEs to recover the value : — Held, that the belts being essential parts of the fixed machines formed part of the realty, and as such passed under the mortgage deed which, therefore, did not require registra- tion under the Bills of Sale Act, 1854. Sheffield and South Yorkshire Permanent Euilding So- ciety V. Harrison, 15 Q. B. D. 358 ; 54 L. J., Q. B. 15 ; 51 L. T. 649 ; 33 W. R. 144— C. A. Trade Machinery,]— A banking company entered into an agreement dated the 29th May, 1886, to sell certain paper-mills and machinery to the L. Company for 20,000Z. to be paid by in- stalments. By clause 2 of the agreement it was provided that upon payment of the first two instalments the bank should convey the premises to the L. Company, upon their executing a mort- gage for the balance of the purchase money, and that the mortgage should contain a clause enabling the bank, in case the business of the L. Company should be suspended, to re-enter and take possession of the premises, and of everything which should have been built or placed thereon, and which should not require registration within the Bills of Sale Act, 1878, and to hold the same for their own use and benefit absolutely, but without prejudice to the liability of the L. company for the unpaid balance of the purchase money. This agreement was not registered as a bill of sale. The first two instal- ments of the purchase money were paid, but no conveyance or mortgage of the property was executed in pursuance of the agreement. The L. Company entered into and held possession of the property until a winding-up order was made on the 7th February, 1887. The bank thereupon re-entered on the property. The ofiicial liqui- dator of the L. Company asked by summons for delivery up of a paper-making machine and all 1239 MORTGAGE— The Contract. 1240 other trade machinery attached to the mills. The bank claimed possession of the fixtures and trade machinery under their vendors' lien : — Held, that the position of the parties under the agreement was the same as if a conveyance and mortgage of the property had been actually executed ; and that the agreement to mortgage did not extend to any property vfhich required registration under the Bills Of Sale Acts, and the trade machinery was therefore not included in the security ; and must be delivered up to the liquidator of the L. Company, but in other re- spects the agreement remained valid. London and Lancashire Paper Hills Company, In re. 58 L. T. 798— North, J. First and Second Mortgagees.] — The S. company carried on the business of manufac- turing zinc and spelter, sulphuric acid, and zinc oxide on leasehold premises. They had erected "■ number of cupola and other furnaces for the purposes of their manufacture, which as between them and their landlord, were admitted to be trade fixtures. In 1880 the company conveyed the land and buildings comprised in its lease to trustees for debenture holders upon trust, to permit the company to carry on business until default in payment of the debentures or winding- up, and then to sell. In 1883 the company exe- cuted a second mortgage to trustees, for a second set of debenture holders, which comprised, besides the land and buildings, all stock-in-trade, stock of ores, and loose plant and material. It appeared that in the course of smelting metals for the company's business, small quantities of gold and silver were given off in the form of vapour, and became imbedded in the bricks lining the furnaces. The company having been ordered to be wound up, the trustees of the first mortgage deed entered and sold. The second mortgagees took out a summons that they might be allowed to enter, and remove the gold, silver, and other metal embedded in the said bricks, claiming that it was included in their mortgage and not in the first. It was admitted that the metals could not be extracted without pulling down the furnaces and pounding up some of the bricks : — Held, that the doctrine of trade fixtures has no application as between mortgagee and mortgagor, that whatever might have been the case between landlord and tenant, the mortgagee was entitled to everything which his mortgagor, intentionally or not, for trade fixtures or otherwise, had fixed to the mortgaged premises, and that the summons must be dis- missed. Tottenliam v. Swansea Zinc Ore Com- y, 52 L. T. 738— Pearson, J. Mortgage by Suh-demise.]— Words which are sufficient when used in a conveyance in fee to pass trade fixtures, are also sufficient to pass them when used in a demise. Soutlvport Bank- ing Company v. Thompson, 37 Ch. D. 64 ; 57 L. J., Ch. Hi ; 58 L. T. 143 ; 36 W. K. 113— C. A. By a mortgage by sub-demise, a corn-mill and other leasehold premises, together with certain fixtures specifically mentioned, and constituting the motive power of the mill, were conveyed by sub-demise to the mortgagees, to secure a sum due to them by the mortgagors. The deed con- tained the following general words : — " Together with all buildings, fixtures, rights, lights, ease- ments," &c. : — Held, that the word " fixtures " in the general words was not restricted to fixtures ejusdem generis with those previously specifi- cally mentioned, but was intended to extend and enlarge that class ; and that, therefore, the trade fixtures in the mill passed by the sub- demise to the mortgagees. The observations of Blackburn, J., in Ilawtry v. Butlin (8 L. E., Q. B. 293), explained. /*. Parcels — Description — General Words — Copyholds passing with Freeholds.] — A mort- gage was expressed to comprise by way of grant in fee " all and every the estate, right, title, property, and interest of the mortgagor of and in all and every those two fields or parcels of land, containing together about twenty-two acres or thereabouts, situate at and abutting upon the main road at ' H., and " bounded upon one side by " B. Lane, " and also of and in all and every other, if any, the lands, hereditaments, and premises at H. aforesaid of, in, or to which the mortgagor hath any estate, right, title, property, or interest." All of the mortgagor's property at H. was freehold, except a strip of land of about three-quarters of an acre which lay between the freeholds and B. Lane, and which was of copyhold tenure : — Held, that the copy- hold strip passed under the general words and was included in the mortgage. Roohe v. Ken- sififton (2 Kay & J. 753), and Cromptcm v. Jarratt (30 Ch. D. 298) distinguished. Early f. Rathlone, 57 L. J., Ch. 652 ; 58 L. T. 517— Kekewich, J. Semble, having regard to the position of the property arid the description in the deed, the copyhold strip was included in the parcels them- selves. Ih. After - acciuired Property — Uncertainty — Bivisible Agreement — Property under any Settlement or Will.] — A mortgagor by deed assigned to the mortgagee all his household goods and farming stock, and " also all moneys of or to which he then was or might during the security become entitled, under any settlement, will or other document, either in his own right, or as the devisee, legatee, or next of kin of any person ; " aiid also all real and personal property " of, in, or to which he was or during that security should become beneficially seised, pos- sessed, entitled, or interested, for any vested, contingent, or possible estate or interest." The mortgagor afterwards became entitled under a will to a share of the personal estate of the testator : — Held, that the assignment of after- acquired property was divisible ; and that although the general assignment of all property to which the mortgagor might become entitled might be too wide, as to which the court gave no decision, the assignment for valuable considera- tion of all moneys to which he should become entitled under any will operated as a contract which the court would enforce, and that the share of the personal estate of the testator was accord- ingly included in the mortgagor's security. Belding v. Read (3 H. & C. 965) questioned. Clarlie, In re, Coombe v. Carter, 36 Ch. D. 348 ; 56 L. J., Ch. 981 ; 57 L. T. 823 ; 36 W. K. 293— C. A. When Goodwill passes — Compensation — Agree- ment for Personal Compensation.] — C. was the occupier of a house under a lease, and carried on the business of a tailor there. In September, 1241 MOHTGAGH— Equitable Mortgage. 1242 1880, the Metropolitan Board of Works gave him notice to treat for the purchase of his interest in the premises. C. sent a claim for 655?. for the value of the lease, damage to trade, costs of re- moval and fixtures. In March, 1S81, the Board, by their solicitor, wrote offering C. 400/. in full discharge of all the items of his claim. C.'s solicitor wrote in reply that he would be willing to advise his client to accept 400/., provided that the leasehold interest was assessed at 150/., as they might have some difficulty in giving a proper assignment, and the money might have to be paid into court ; and continued, " I, however, don't want to prejudice my client's personal compensation ; and as it may never reach him, I am inclined not to Insist on what I should think was the fall value." The Board at first replied that they could not agree to this ; but after receiving a letter from C.'s solicitor urging them to lodge the warrant, and stating that the claim for the leasehold interest was on behalf of C. and his mortgagee, they wrote to C.'s solicitor that if C. would accept 400/. in settlement, they would consent to apportion 150/. to the lease- hold, and 250/. to the trade damage and other items of claim ; C. agreed to these terms. C. had mortgaged his lease, the mortgagee had disap- peared, and C. was unable to produce the lease or to make out a title. The Board declined to pay him any part of the 400/. C. brought this action for specific performance. After the action was brought the Board paid the whole sum into court. It was contended on behalf of the Board that the 250/. was intended to cover compensa- tion in respect of the goodwill of the business, in which the mortgagee would have an interest : — Held, there was an express agreement that 250/. should be paid to C. personally as occupier, and that although in some cases the goodwill of trade premises passes to a mortgagee, that does not apply to the case when the goodwill depends on the personal skill of the owner. Cooper v. Metro- politan Board of Worlts, 25 Ch. D. 472 ; 53 L. J., Ch. 109 ; 50 L. T. 602 ; 32 W. E. 709— C. A. II. EftTJITABLE MORTGAGE. Oral Promise— Subsequent Oral Direction to hold Title Seeds as Security— Statute of Frauds — Part Performance.] — The bankrupt, being in- debted to a banking company, made an oral promise to the directors to give them, when required, security for the debt. He was then entitled to a reversionary interest in one-fifth of a farm, to come into possession on the death of his mother, who was tenant for life, and who held the title deeds. The mother afterwards died, and the title deeds came into the possession of the respondent, who was manager of the bank, and who was also entitled to one-fifth of the property. The respondent told the bankrupt that he had possession of the deeds, and that he held his (the bankrupt's) one-fifth for the bank. The bankrupt expressed his assent : — Held, that the company had not a valid equitable mortgage of the bankrupt's share in the farm, for there was no memorandum in writing to satisfy the Statute of Frauds, and the conversation which took place between the bankrupt and the re- spondent as to the custody of the deeds, not being followed by any act which altered the legal position of the parties, was not such a part performance of the oral promise to give security as would exclude the operation of the statute. Brodericl\ Eai parte, JBeetham, In re, 18 Q. B. D. 766 ; 56 L. J., Q. B. 635 ; 35 W. E. 613— C.A. Agreement to Charge— Power of Attorney.] — De T. being given up to the authorities of a foreign country, under an extradition treaty, to be tried on a charge of murder, assigned all his property to P., and executed a general power of attorney in favour of P. and T. The object of these instruments was, as the court held, to enable money to be raised for his defence. T. was co-trustee with the plaintiff of a marriage settlement, and proposed to him that Consols be- longing to the trust should be sold out, and the proceeds advanced on the security of a charge on De T.'s property. The plaintiff assented, and the Consols were sold and the proceeds paid to T., who produced to the plaintiff a document pur- porting to be a memorandum of deposit of the assignment and power of attorney, and an equit- able charge to secure the advance. The Court held on the evidence that P. knew of the charge, and either actually authorised it or left T. to do as he liked :— Held, that the money had been advanced upon the faith of an agreement to charge the property of De T., that such an agree- ment was within the powers of P. and T., and that if the agreement had not been fully carried out, the plaintiff was entitled to have the charge carried into effect. Parish v. Poole, 53 L. T. 35 — ^North, J. Affirmed in C. A. Contract to Create — Advance — Possession of Deeds — Evidence.] — In 1878 A. entered into a contract for the sale to him of two freehold houses at the price of 650/. The deposit of 50/. was paid to him, and 360/., part of the balance, was obtained from his niece B., to whom ho gave his I. 0. U. On the 21st August, 1878, the wife of A., by his direction, wrote to B. as follows ; "A. bought two houses . yesterday, and he is going to have them settled and signed in your name, and give them to you. I send yon the conditions of sale for you to look at, and I should like you to come and see A Bring your bank book with you, as what you have might as well go into them as for us to pay interest. It is all right, I can assure you. I sent the 50/. by cheque last night, on deposit." On the 25th October, 1878, the two houses were duly conveyed to A., and he directed his wife to hand over the title deeds to B., and he also said to his wife that the deeds belonged to B., and were of no use to his wife. The deeds were sent to B., by A.'s wife. Subsequently A. died intes- tate, and his eldest brother and heir-at-law com- menced an action against B., claiming a decla- ration that he, the plaintiff, was entitled to the rents and profits of the two houses and the de- livery up of the title deeds ; — Held, that there was evidence of an intention on the part of A. to give the property to B. ; but that no gift of it had in point of law been made ; but held, that there was sufficient evidence of a contract to create an equitable mortgage in favour of B., and upon which the possession of the title deeds by B. originated ; and that there should be a redemption decree upon that footing, the costs of B. being added to her security. McMahon, In re, McMahon v. McMahnn, 55 L. T. 763— Chitty, J. 1243 MOETGAGE — Assignment and Transfer. 1244 Conveyancing Act, 1881 — Sale under Power — Power to convey Legal Estate.] — An equitable mortgagee by deed who sells in exercise of the power of sale conferred by the Conveyancing Act, 1881, cannot convey the legal estate vested in the mortgagor. Hudson and Howes, In re, 35 Ch. D. 668 ; 56 L. J., Ch. 755 ; .56 L.'T. 837 ; 35 W. E. 553— C. A. Sale instead of roreclosure.] — An equit- able mortgagee by deposit of deeds is entitled under s. 25, sub-s. 2 of the Conveyancing Act, 1881, for an order for sale instead of foreclosure, although there is no memorandum of the charge and no agreement by the mortgagor to execute a legal mortgage. Oldliam v. Stringer, 51 L. T. 895 ; 33 W. R. 251— Kay, J. Account — Order for Sale, but Sale not to take place until three months after Certificate.] — Where an equitable mortgagee by deposit of deeds applied, under s. 25, sub-s. 2 of the Con- veyancing Act, 1881, for an order for sale in- stead of foreclosure, there being a memorandum o£ the chai'ge, and an agreement by the jnort- gagor to execute a legal mortgage, the court made an order for sale of the property, such sale not to take place until three months after the chief clerk's certificate, as to the amount due to the plaintiff, should be filed ; but re- fused to order an immediate sale after such certificate. Green v. £iggs, 52 L. T. 680— Kay, J. Priority — Collateral Security by Bond — Judg- ment.] — When an equitable mortgagee, by deposit of title deeds, took a bond to secure the same debt, and entered up judgment thereon, which he afterwards registered as a mortgage against the lands : — Held, that he did not thereby forfeit his security by equitable mortgage, or defeat its priority. Jennings' Estate, In re, L. E., Ir. 277— Flanagan, J. Garnishee Order.] — An equitable charge given before a garnishee order is obtained takes priority of the order, even in the absence of notice of the charge. Badeloy v. Consolidated Banh, 38 Ch. D. 238 ; 57 L. J., Ch. 468 ; 59 L. T. 419 ; 36 W. E. 745—0. A. Invalid Transfer of Charge — ^Eight to Deed.] — An equitable mortgagee by deposit of a deed cannot pass his interest in the property by a parol voluntary gift accompanied by delivery of the deed ; and as his interest in the deed is only incidental to his interest in the mortgage, the donee of the deed has no right to retain it. Riohardson, In re, ShiUito v. Iloison, 30 Ch. D. 396 ; 55 L. J., Ch. 741 ; 53 L. T. 746 ; 34 W. E. 286— C. A. Cancellation — Letter of Deposit — Subsequently Registered Settlement — Notice.] — M., being en- titled to the lessee's interest in certain lands at C, in 1868 deposited, inter alia, the title-deeds with a bank, to secure any balance due or to become due, accompanied by a letter of deposit. On the 21st November, 1870, he wrote to the manager of the bank, 0., asking for the title- deeds of C. in exchange for other securities, and stating that he had agreed to put C. in settle- ment on his marriage ; and at the same time he deposited other securities with 0. on behalf of the bank. 0. thereupon drew two lines through the memorandum of 1878 in the deposit boot ; and wrote at foot of the entry, " Annexed list cancelled, and new ones substituted." The bank, however, refused to give up the deeds of C. On the occasion of his marriage, M. executed a settlement, dated the 24th November, 1870, and registered on the 8th February, 1871, charging C. with a sum of 3,000?., which, subject to life interests for himself and his wife, was settled in trust for the children of the marriage. M., who was a solicitor, drew the settlement, and was the only solicitor in the transaction. Subsequently, in 1871, M. gave the bank a further letter of deposit in which the title-deeds of C. were in- cluded. None of the letters of deposit were registered. After the settlement M. paid in, to the credit of his current account with the bank, sums of money exceeding the amount due from him at the date of the settlement. In a paper, pinned to the letter of deposit of 1870, 0. made a memorandum stating that it was cancelled by the letter of deposit of 1871, which was taken, fearing any irregularity in the former trans- action. O. deposed that he did not intend to give up the security of the deposit of 1868 ; that he had a general authority to substitute one security for another, but not to give up a security altogether. M. and his wife afterwards died, leaving one child, issue of the marriage ; M. being at the time of his death indebted to the bank, who claimed priority over the charge created by the settlement : — Held, 1. That the deposit of 1868 was not cancelled, but was stUla subsisting security in favour of the bank. 2. That the bank had notice of the settlement of the 24th November, 1870 ; and consequently all subsequent advances made by them were post- poned to the charge of 3,000Z. 3. That the issue of the marriage was not affected with notice of the equitable mortgage to the bank. Macna- mara's Estate, 13 L. £., Ir. 158 — Land Judges. III. ASSIGNMENT AND TEANSFEE. Assignment — Power to Execute to a Person other than Mortgagor.] — A building society is not precluded bv the provisions of the Building Societies Act, 1874 (37 & 38 Vict. u. 42), from exercising the ordinary right of a mortgagee to transfer his mortgage, by way of assignment, to any third person. Ulster Permanent Svilding Society v. Glenton, 21 L. E., Ir. 124— Monroe, J. Bights of Assignee — Beceipt endorsed for Larger Sum than advanced.] — On the 10th of February, 1879, the plaintiffs mortgaged to B. for 250Z. their equitable interests in a sum of stock, and also certain policies of assurance. By the mortgage deed they acknowledged the receipt of 2502., and they also signed a receipt for that sum indorsed on the mortgage deed. On the 11th of March, 1879, B. transferred the mortgage to H., who gave full value for it as a mortgage for 250Z., and had no notice that the plaintiffs had not received that sum. The plaintiffs brought their action alleging that they had only received 91Z. instead of 250Z., and asking redemption on payment with interest of what they had actually received. The court considered that the evidence would have been sufficient to entitle the plaintiffs to a judgment 1245 MORTGAGE— Several Mortgages. 1246 on that footing as against B. : — But held, that as against H., who had no notice that the whole 250Z. had not been advanced, the account must be taken on the footing of its having been ad- vanced ; for that, in the absence of any circum- stances to cause suspicion, he was entitled to lely on the acknowledgment in the mortgage deed and the indorsed receipt, and had a better equity than the plaintiffs, who, by leaving the documents in the hands of B., had enabled him to commit a fraud. BwlteHon v. Wallter, 31 Ch. D. 151 ; 55 L. J., Ch. 227 ; 53 L. T. 731 ; 34 W. R. 141— C. A. Transfer — Sale of Property— Vesting Property in Purchaser — Payment into Court.] — A mort- gage deed gave the mortgagee an option to pur- chase in case the debt was not paid on a day named. The trustees in bankruptcy of the mortgagors sold the mortgaged property. A part of the purchase-money was deposited to provide against the mortgage. Pending pro- ceedings on the part of the trustees to set aside the mortgage on the ground of fraudulent pre- ference, an order was made that the money deposited should be paid into court, and on such further sum being paid in as would cover the principal and interest due, and 10 per cent, ■extra, the mortgaged property should vest in the purchaser. Milford Haven Railway and Estate Company v. Mowatt, 28 Ch. D. 402 ; 54 L. J., Ch. 567 ; 33 W. R. 597— Pearson, J. mortgagee of Unsound Mind.] ^- See cases, ante, cols. 1159, 1160. IV. RELEASE AND EECONVEYAXCE. Belease hy Parol — Handing over Mortgage leed — ^Absence of Consideration.] — By an in- denture made in 1858, G. mortgaged to his father a share of personal estate to which G-. was en- titled in reversion, expectant on his mother's death. The father died in 1872, having made another son, C, his executor and residuary legatee. The mother died in 1887. C. shortly afterwards sent a letter to G., enclosing the indenture, and stating that he handed it over to G. in compliance with the wish of their late mother. C. afterwards changed his mind and claimed the share under the mortgage. No in- terest had ever been paid on the mortgage debt by G., and no acknowledgment given by him in respect of it : — -Held, that, in the absence of any consideration, the letter, though coupled with delivery of the mortgage deed, was not an effectual release, and was incomplete as a gift, and did not amount to a declaration of trust, and that C. was entitled to the share. Sancoeh, In re, EoMcoch v. Berrey, 57 L. J., Ch. 793 ; 59 L. T. 197 ; 36 W. R. 710— Kay, J. Beconveyance — Deed — Validity.] — The ab- sence of a seal from deeds of reconveyance, there being no evidence that they had ever been sealed, renders them invalid. Sandilands, In re (6 L. R., C. P. 411), considered. National Provincial Bank of England v. Jaeltson, 33 Ch. D. 1 ; 55 L. T. 458 ; 34 W. R. 597— C. A. When obligatory.] — Until a mortgagee is paid off, he is not obliged to re-convey. Laoey V. Waghorne, 59 L. T. 208— Kay, J. V. SEVERAL MORTGAGES. 1. TACKING AND CONSOLIDATION. Assignment by Purchaser for Value without Notice, to Purchaser for Value with Notice.] — The trustee of a mortgagor is not entitled to avail himself of the legal estate for the purpose of altering the priorities of the mortgagees. LedlirooTt v. Passman, 57 L. J., Ch. 855 ; 59 L. T. 306— Stirling, J. The owner of a farm mortgaged it in succes- sion to three persons, the third mortgagee having no notice of the second mortgage. By a deed made between the mortgagor and P., in order (as was recited) to stop a forced sale by the mortgagees, the equity of redemption was con- veyed to P. upon trust for sale, with power to postpone the sale and raise money by mortgage or otherwise to pay off the mortgagees, and the proceeds were to be held by P. upon trust to pay his costs and expenses, and, after payment of the same and the mortgages, to pay the residue to the mortgagor. P., having notice of the second mortgage, paid off the first and third out of his own moneys and took a transfer of the benefit of them, and he subsequently got in the legal estate. Upon an action by the second mortgagee for redemption : — Held, that P. acted as trustee for the mortgagor, and that he was not entitled to tack to the prejudice of the second mortgagee, but that he was entitled to add his costs to his security. li. Second Legal Mortgagee Paying off Equit- able Mortgage — Effect on Prior Legal Mort- gage.] — W. was owner in fee of certain pro- perty, and prior to the 1st May, 1879, mort- gaged it by deposit of title deeds to secure an advance by G. On the 1st May, 1879, W. gave a legal mortgage of the same property to B. to secure a debt owed by him. B. at the time of the execution of the mortgage did not know of the equitable mortgage to G. In June, 1879, W, applied to the defendant to make an advance to pay off the charge held by G. The defendant advanced the money ; G. handed the deeds back to "W., who handed them to H., who was acting for all parties ; and H. in his turn handed them to the defendant. W. on or about the same date executed a legal mortgage of the same premises to the defendant to secure his advance. This deed did not recite the mortgage of the 1st May to B., nor was the defendant aware of its existence. B. subsequently became insolvent, and his trustee in liquidation claimed priority for the mortgage to B. of the 1st May, over that of June, 1879, to the defendant : — Held, that as from the nature of the transaction between the parties it was intended that the defendant should stand in the place of the equitable mortgagee, he was entitled to priority over the first legal mortgagee to the extent of' the amount of the equitable mortgage. Mason v. Rhodes, 53 L. T. 322 — D. Third Mortgagee of Part getting in First Mortgage of Whole.] — See Atlierley v. Barnett, post, col. 1253. 1247 MO'RT GAGE— Several Mortgages. 1248 Trustee Lending Money without Notice of Prior Incumbrance.] — A trustee who has the legal estate and takes from his cestui que trust an assignment of the equitable interest by way of security for money advanced to the cestui que trust, can avail himself of the legal estate as a protection against a prior incumbrance of which he had no notice. Newman v. Newman, 28 Ch. D. 674 ; 54 L. J., Ch. 598 ; 52 L. T. 422 ; 33 W. E. 505— North, J. Building Society — Statutory Receipt — Succes- sive Incumbrancers — Bight to call for Legal Estate. ] — H. mortgaged leaseholds to building societies established under 6 & 7 Will. 4, c. 32, and executed a second mortgage to the respondents. H. afterwards borrowed a sum from the appellants, part of the loan being applied to paying ofE the building societies, and the balance being paid directly to H., who executed a mortgage to the appellants to secure the loan. Upon being so paid ofE the building societies indorsed on their respective mortgages receipts to the mortgagor in accordance with 6 & 7 Will. 4, c. 32, s. 5, and delivered the indorsed deeds with the title deeds to the appellants. Neither the building societies nor the appellants had any notice of the respon- dents' mortgage. The respondents having brought an action against the appellants for foreclosure and sale : — Held, that the appellants' mortgage had priority over the respondents' mortgage, not only in respect of the moneys applied in paying ofE the building societies, but also in respect of the balance of the loan paid directly to H. Pease v. Jaclison (3 L. R., Ch. 576) and Moiin- son V. Trevor (12 Q. B. D. 423), overruled upon this point. Hoslting v. Smith, 13 App. Cas. 582 ; 58 L. J., Ch. 367 ; 59 L, T. 565 ; 37 W. R. 257— H. L. (E.) In 1865, L., a member of a building society established under 6 & 7 Will. 4, c. 32, mortgaged certain premises to the society to secure all moneys to become due from him under its rules. In 1868, by a deed reciting the first mortgage, L. mortgaged his interest in the premises to the plaintiff. The first mortgagees received no notice of the second mortgage. In 1875, in pursuance of a previous arrangement with L., the appellants paid off the first mortgage, whereupon the trus- tees of the society handed to them the title- deeds, and also the first mortgage-deed indorsed with a receipt, pursuant to 6 & 7 Will. 4, c. 32, s. 5, and antedated to the date of the arrange- ment. The appellants, who had no notice of the second mortgage, also made a further advance to L., whereupon he assigned the premises to them to secure the whole sum so paid to him and to the first mortgagees. All three mort- gages were duly registered in the North Riding registry in order of date. L. filed a petition for liquidation : — Held, that the appellants were entitled to priority over the plaintifE in respect of the further advance to L. Pease v. Jaehson (3 L. R., Ch. 576) followed ; Fourth City Mutual Benefit Building Society v. Williams (14 Ch. D. 140) considered — per Baggallay, L. J. Robinson, V. Trevor, 12 Q. B. D. 423 ; 53 L. J., Q. B. 85 ; 60 L. T. 190 ; 32 W. R. 374— C. A. See pre- ceding case. Indorsed Keceipt by Friendly Society.] — T. mortgaged his property first to a friendly society and then to a bank. Afterwards T. applied to a building society for an advance. The building society, without notice of the second mortgage, paid off the first mortgage, and made a further advance to T. The friendly society reoonveyed the property to T. by means of a regular convey- ance, and on the same day T. executed a mort- gage to the building society : — Held, that the building society was entitled to the legal estate and to priority over the bank for the whole advance. Pease v. Jaehson (3 L. R., Ch. 576) and Robinson v. Trevor (12 Q. B. D. 423) distinguished. Carlisle Banhing Company v. Thompson, 28 Ch. D. 398 ; 53 L. T. 115 ; 33 W. B. 119— North, J. Voluntary Settlement by Mortgagor — Subse- quent Mortgages of Settled and other Property.] — A. B. having executed a voluntary settlement of the W. estate, mortgaged it in fee to X. Y. He afterwards mortgaged the Q. estate, and that mortgage became vested in X. Y. : — Held, that X. Y. was not entitled to consolidate as against the persons claiming under the voluntary settle- ment the mortgages on the W. and Q. estates. Walhampton Ustate, In re, 26 Ch. D. 391 ; 53 L. J., Ch. 1000 ; 51 L. T. 280 ; 32 W. E. 874— Kay, J. Consolidation on Redemption.] — See Bird v. Wenn, post, col. 1282. 2. PRIORITY. Mortgage of Renewable Leasehold — Purchase of Beversiou by Mortgagor — Mortgage of Be- version.] — An ecclesiastical lease of a house for a term of years, which was renewable by custom, though it contained no covenant by the lessors for renewal, was mortgaged, and the equity of redemption was afterwards assigned for value. The Ecclesiastical Commissioners, in whom the reversion had become vested, would not renew the lease, but before its expiration they agreed to sell the reversion to the assignee of the equity of redemption. The conveyance was not executed till after the expiration of the lease. While the negotiation for the purchase of the reversion was in progress the assignee borrowed 300Z., giving the lender a memorandum in writing, which stated that the money was to be secured by a mortgage from him of the house " so soon as he had completed the enfranchisement of the pro- perty from the commissioners." The lender had no notice of the mortgage of the lease : — Held, that the mortgagor could only hold the fee simple of the property subject to the mortgage of the lease, and that he (and consequently the lender of the 300Z.) was not entitled to any prior lien on the property for the purchase-money of the reversion, notwithstanding the fact that the mortgagor was under no obligation to the mort- gagees of the lease to obtain a renewal of it, or to purchase the reversion. Leigh v. Burnett, 29 Ch. D. 231 ; 54 L. J., Ch. 757 ; 52 L. T. 458 ; 33 W. R. 578— Pearson, J. Purchase by Mortgagor's Trustee in Bank- ruptcy of First Mortgage.] — A. trustee in bank- ruptcy does not by purchasing from the first mortgagee of the bankrupt extinguish the first mortgage and make the second mortgagee the 1249 M.0KIQAGI1— Several Mortgages. first incumbrancer on the estate. Bell v. Sunder- land Building Society, 24 Ch. D. 618 ; 53 L. J., Ch. 509 ; 49 L. T. 555— V.-C. B. Purchase for Value — Trust to Invest on specific Security — Conununication to Cestui que trust.] — Plaintiffs were trustees of a settlement, under which H. was tenant for life. P. was their solicitor. P., having trust funds in hand, arranged with H. that a certain sum should be invested on a mortgage. P. advanced the money in his own name, but entered it in his firm's books as a loan on behalf of the trust, and treated it as such in correspondence with H. The plain- tiffs were not told of the investment. P. fraudu- lently deposited the mortgage with the defendants to secure a debt of his firm, the defendants taking bonS, fide : — Held, that though the plaintiffs could not delegate their trust so as to constitute H. their agent to authorise the investment, and although P. did not hold the fund in trust for investment on any specific security, the plain- tiffs were entitled to priority over the defen- dants. HaHopp V. HusMsson, 55 L. T. 773 — Kekevrich, J. Authority to raise Honey — Solicitor and Client — Deposit of Deeds.] — The plaintiff exe- cuted a mortgage to his solicitor believing the document to be an authority to raise money on the property. The solicitor deposited the deeds with S. and Co. to secure a present advance and appropriated the money : — Held, that S. and Co.'s equity was prior to that of the plaintiff. French v. Sope, 56 L. J., Ch. 363 ; 56 L. T. 57 — Kekewich, J. Grounds on which Legal Mortgage postponed to subsequent Equitable Security.] — The court will postpone a legal mortgage to a subsequent equitable security : (1) where the legal mort- gagee has assisted in or connived at the fraud which led to the creation of the subsequent equitable estate, of which assistance or con- nivance the omission to use ordinary care in inquiring after or keeping the title-deeds may be sufficient evidence where such conduct cannot otherwise be explained ; or (2) where the legal mortgagee has made the mortgagor his agent with authority to raise money, and the security given for raising such money has by misconduct of the agent been represented as the first estate. But the court will not postpone a legal mort- gagee to a subsequent equitable mortgagee on the ground of any mere carelessness or want of prudence on the part of the legal mortgagee. Northern Cowntiee of England Fire Insurance Compamy v. Wlivpp, post, col. 1252. The cases where a prior equitable mortgagee has been postponed on the ground of negligence are cases where he has taken no steps although he knew that the mortgagor had made default in performiug his obligations, and his omission to take such steps has enabled the mortgagor to commit a fraud ; but no case decides that he is to be postponed because he has not taken precautions against a future default by a mort- gagor who has not yet, to the knowledge of the mortgagee, been guilty of default. Uwion Banlt, of London v. Kent, post, col. 1252— Per Fry, L.J. The rule that the court will not postpone a legal mortgagee to a subsequent equitable mort- gagee on the ground of any mere carelessness or want of prudence does not apply as between two 1250 equitable claims. National Provincial Bank of England v. Jachson, 33 Ch. D. 1 : 55 L. T. 458 : 34 W. E. 597—0. A. Negligence— Money left in Hands of Solicitor for Investment — Representation that Money advanced on Mortgage.] — A client left moneys for investment in the hands of his solicitors. The soUoitors represented that the sum of 11,0002., part of these moneys, was invested on mortgage of freehold property at A., belonging to a firm, and the client made no further in- quiry. The solicitors were in fact the holders of a mortgage for 55,000?. upon property X. at A., belonging to the firm, and they repaid them- selves H,OOOZ. of the 55,000?. with the client's money. The firm afterwards bought property Y. at A., and mortgaged it in fee to a bank. The solicitors released the firm from the mort- gage debt of 55,000?. on property X. and took from them a mortgage for 50,000Z. on properties X. and Y., subsequently, by arrangement with the firm, purchasing the equity of redemption in both properties, and selling them for shares to a limited company into which the firm was, through their instrumentality, converted. These transactions all took place without the know- ledge of the client : — Held, first, that the solicitors must be treated as having become trustees for the client of 11,000?. out of the 55,000?. secured by mortgage on property X. ; and having im- properly, as against the client, given up that mortgage in exchange, the client had a right under the circumstances to claim a charge for 11,000?. and interest upon property Y. (in which the legal estate was outstanding) as well as upon property X. : — Held, secondly, that there had been under the circumstances no such negligence or want of prudence on the part of the client as to postpone him, and that he was entitled in priority to the limited company to a charge on property Y. in which the legal estate was out- standing. Waldron v. Sloper (1 Drew. 193) distinguished. Vernon, Ewens ^ Company, In re, 33 Oh. D. 402 ; 56 L. J., Ch. 12 ; 55 L. T. 416 ; 35 W. R. 225—0. A. Deeds asked for.] — A legal mortgagee had asked for the deeds which the mortgagor, who was his solicitor, made excuses for not giving to him. The mortgagor afterwards de- posited the deeds with another mortgagee as security for money advanced without notice of the legal mortgage : — Held, in an action by the legal mortgagee for foreclosure, that he had not been guilty of fraud or negligence amounting to fraud, and that he could not be postponed to the mortgagee by deposit by reason of any negli- gence short of that. Held also, that the legal mortgagee was entitled to recover the deeds from the mortgagee by deposit, notwithstanding he was a purchaser for value without notice; and that s. 25, sub-s. 11, of the Judicature Act, 1873, did not alter the rule of law on the subject. Manners v. Mew, 29 Ch. D. 725 ; 54 L. J., Ch. 909 ; 53 L. T. 84— North, J. Trustee of Marriage Settlement.] — In November, 1875, a husband deposited with his bankers the title-deeds of some leasehold houses, together with a memorandum of deposit, as a continuing security to the bankers for any overdraft of his wife's current account with them. In November, 1876, he died, having S S 1251 MORTGAGE— Several Mortgages. 1252 bequeathed all his property to his wife, and ap- pointed her his executrix. After his death the deeds remained with the bankers, and the widow was allowed on the security of them to overdraw her account. In May, 1877, she married again. Prior to the marriage the houses were assigned by her to a trustee on trust for herself for life, and after her death on trust for an infant son of her first marriage absolutely. Power was given to the trustee to sell the houses during the life of the wife, at her request, and after her death at the discretion of the trustee. The trustee made no inquiry about the title-deeds, and no notice of the settlement was given to the bankers. In June. 1877, the husband and wife gave notice to the bankers of their marriage, and at their request a balance, which then stood to the credit of the wife's current account^ was transferred to a new current account opened by the bankers with the husband. , The deeds re- mained with the bankers, but no notice of the settlement was given to them. In November, 1877, at the request of the bankers, the probate of the first husband's will was sent to them, and at their request, a new memorandum of deposit was, in January, 1878, signed by the husband and wife, making the deeds a continuing secu- rity to the bankers for any overdraft of the husband's current account. In April, 1878, the wife died. The deeds were still with the bankers, and at that time the husband's current account was in credit. In 1883 the trustee made some inquiries, and then discovered that the deeds, which he had believed to be in the custody of the solicitor who had prepared the settlement, were with the bankers. He then gave the bankers notice of the settlement, and claimed the deeds. This was the first notice that the bankers had had of the settlement : — Held, that the omission of the trustee to inquire for the title-deeds was negligence of such a character as prevented him from availing him- self of the legal estate to give him priority over the equitable charge of the bankers, and that the cestui que trust stood in no better position. Held also, that the bankers were entitled to priority in respect of the amount due to them on their security at the time when they received notice of the settlement. Lloyd's Banking Company v. Jones, 29 Ch. D. 221 ; 54 L. J., Ch. 931 ; 52 L. T. 469 ; 33 W. E. 781— Pearson, J. Duty of Mortgagee to Inquire as to Settle- ment.] — When a married woman executes a mortgage there is no obligation on the mort- gagee to inquire whether a settlement was made on her marriage. lb. Mortgage of Building Agreement — leases granted under it — No Notice to land- lord.] — ^A company obtained a building agree- ment of a certain piece of land, by which they covenanted to erect houses thereon, and as they erected houses a separate lease of each house was to be granted to them. They then executed a mortgage deed by which they gave to the mortgagees an equitable mortgage of their in- terest under the building agreement, and cove- nanted to give them legal mortgages by demise of the houses when the leases had been granted. The mortgagees did not give notice of their mortgage to the freeholder. Afterwards the company obtained leases of certain houses which they had erected, and deposited them with their bankers by way of equitable security : — Held, that it was not necessary for the first mortgagees to give notice of their mortgage to the landlord in order to complete their security, and that their omission to give such notice was not such negligence as would postpone them to the sub- sequent equitable mortgagees. Mwmford v. Stohwasser (18 L. E., Eq. 556) considered. La/yard v. Maud (4 L. E., Eq. 397) distinguished. Vnion Banli of London v. Kent, 39 Ch. D. 238 ; 57 L. J., Ch. 1022 ; 59 L. T. 714 ; 37 W. E. 364 — C. A. Custody of Deeds.] — C, the manager of a joint stock company, executed a legal mortgage to the company of his own freehold estate, and handed over the title-deeds to them. The deeds were placed in a safe of the company, which had only one lock having duplicate keys, one of which was intrusted to C, as manager. Some time after- wards C. took out of the safe the deeds, except the mortgage, and handed them to W., to whom at the same time he executed a mortgage for money advanced to him by her, without notice of the company's security : — Held, that the mort- gage of the company had priority over the mort- gage to W. Northern Counties of England Fire Insurance Company v. Wliipp, 26 Ch. D. 482 ; 53 L. J., Ch. 629 ; 51 L. T. 806 ; 32 W. R. 626 — C. A. See also Garnham v. Shipper, post, col. 1254. Mortgage by Deposit — Priority as be- tween Equities.] — On the 18th of January, 1883, A. , a solicitor, obtained from his sisters, B. and C, their signatures to two deeds, by which, in alleged consideration in each case of the release of a debt of 400Z. and payment to them of 300Z. , they conveyed their shares of free- hold property, which was subject to a mortgage to K., to A. in fee. No money was at the time due from B. and C. to A., nor was any payment whatever made to them. The deeds were not read over or explained to B. and C, who had no idea that they were thereby conveying their property, and signed in full reliance on A.'s statement that he was going to clear ofE the mortgage and wanted to send the deeds to K. On the next day A. deposited the deeds with a bank as security for an advance. In applying for the advance before the execution of the deeds, A. had told the managers that B. and C, who were joint ovmers vrith himself of the property, were going to convey and " were assisting with the deeds," but that nothing would be paid to them as consideration money, as the money was to be -invested in a colliery in which A. was in- terested. The manager handed over the deeds to the solicitor of the bank and merely told him that he was to exercise great care and diligence in investigating the title. The solicitor being dead, it did not appear what inquiries were made by him, but the advance was made to A. A. having absconded, the property was claimed by the bank as equitable mortgagees, and the claim was resisted by B. and C. on the ground that the conveyances, having been obtained by fraud and misrepresentation, were void as against them : — Held, that inasmuch as B. and C, though they may not have understood the nature of the deeds, knew they were executing some- thing which dealt in some way with their pro- perty, the deeds of the 18th of January, 1883, were not void but voidable only. But as the 1253 MOnTGAGE— Several Mortgages. 1254 statements made by A. to the bank manager were such as to have clearly put the bank upon inquiry, which would, if made, have led to the detection of the fraud and to a refusal of the advance, and therefore to have affected the bank with constructive notice of the fraud, the equity of the bank must, on the ground of their negligence, be postponed to that of B. and C. National Provincial Banli of England v. Jacli- son, 33 Ch. D. 1 ; 55 L. T. 458 ; 34 W. K. 597— C. A. Seeds not Examined.] — By two separate mortgage deeds, dated the 7th August, 1877, N., who was S.'s solicitor, mortgaged to W. and S. two separate estates, A. and B., to secure 1,250Z. on each estate. The B. estate comprised five sepa- rate properties, which were separately described and numbered (1), (2), (3), (4), (5). S. asked N., as it was a teust matter, to send him the deeds, and N. sent a parcel, which S. sent on to his bankers without examination. It was after- wards found to contain only the two mortgage deeds. On the 20th October, 1880, N. deposited the title-deeds relating to (5) with L. to secure 3002. On the 18th May, 1881, he deposited the deeds relating to (1), (2), (3), and (4), to secure an overdraft of 3,000Z. with his bankers, the plaintiffs. The deed relating to the A. estate had been previously deposited with the plaintiffs to secure his overdraft. Neither L. nor the plaintiffs had at the time of their advances any notice of the first mortgage, nor had the plain- tiffs any notice of the advance to L. In June, 1882, N. became bankrupt. In July, 1882, the plaintiffs took a transfer of the mortgages to W. and S. They then brought this action for fore- closure, claiming to tack the sum due on their equitable mortgage to that due on the first mortgage of B., so as to gain priority over L. : — Held (1), that S. had not been guilty of such negligence as to postpone his legal mortgage to the subsequent equitable incumbrances ; (2), that the general rule as to tacking applied, though the third mortgage did not include that part of the property in the first which was com- prised in the second, and that the plaintiffs had a right to recover the whole of their debt in priority to L. out of all the B. estate. Atlierley V. Bamett or Burnett, 52 L. T. 736 ; 38 W. R. 779 — Pearson, J. Omission to register letter of Deposit.] — L. was entitled under the will of E. to premises held under three leases for terms of years and assigned to E. by deed of the 31et July, 1846. In 1877 L. deposited this deed with a bank by way of equitable mortgage, accom- panied by a memorandum in writing, which the bank did not register. In 1879 the bank having pressed L. for payment, they were informed that L. was about to raise money out of which they would be paid a sum on account of what was due to them, and B., who had investigated the title and searched the registry, immediately afterwards made an advance, upon the deposit of a number of title-deeds of the premises, including the original leases and the probate of E.'s will. B. was at the time informed by L.'s solicitor (both of them being ignorant of the deposit with the bank) that all the title-deeds were delivered to him ; but a comparison of the schedule of deeds delivered with the abstract of title which had been furnished would have shewn that a material title-deed was absent. The greater part of the money so advanced by B. was paid over by L. to the bank : — Held, that B. had the better equity, and that the bank, by not registering their memorandum of deposit, and by allowing L. to retain all the title-deeds but one, and thereby enabling him to raise further sums on the property, without notice of their charge, were guilty of negligence so as to deprive them of their priority. Lambert's Estate, In re, 13 L. E., Ir. 234— C. A. Estoppel by Conduct — Demanding Deed.] — The plaintiff, mortgagee of a policy of fife insurance, handed it to the mortgagor for a particular purpose. On the plaintiff demanding it back from time to time, the mortgagor made excuses for not doing so ; and the plaintiff then forgot that it had not been returned. After- wards the mortgagor deposited the policy with the defendants to secure an advance. The plain- tiff gave notice of his interest to the insurance company before the defendants : — Held, that the plaintiff was entitled to the policy as against the defendants, and that the conduct of the plaintiff had not been such as to estop him from asserting his claim against the defendants. Sail v. West End Advance Company, 1 C. & E. 161— Wil- liams, J. Two Equitable Mortgages — Agreement for Legal Mortgage.] — The owner of the A. and B. property deposited with K. some of the earlier title-deeds of the A. property as a security for 300Z., promising to execute a legal mortgage. He subsequently executed a legal mortgage of both properties to the plaintiff, who took with- out notice of K.'s charge, as security for an im- mediate loan ; but the mortgage was stated to be subject to a charge iu favour of J., with whom the title-deeds were said to be deposited. J.'s charge was only over the B. property, though she had possession of the title-deeds relating to both properties, except such of the earlier title- deeds of the A. property as were in K.'s posses- sion : — Held, that the mortgage to the plaintiff must take priority over K.'s charge, although the plaiatiff had not obtained possession of the title-deeds or made active inquiry about them, and although the mortgagor, before executing the mortgage to the plaintiff, had agreed to give K. a legal mortgage. Garnliam v. Shipper, 55 L. J., Ch. 263 ; 53 L. T. 940 ; 34 W. E. 135— North, J. Although a mortgagor cannot give the second of two equitable mortgagees priority over the first by voluntarily conveying to him the legal estate after the transaction is completed, a person who advances money on an agreement for a legal mortgage wUl not, when the legal mortgage is executed, be postponed to a prior equitable mortgagee of whom he had no notice, merely because the mortgagor had contracted to execute a legal mortgage to such prior equitable mort- gagee. Maxfield v. Burton (17 L. B., Eq. 15), distinguished. J5. Charging Order— Fund in Court.]— A judg- ment creditor cannot by obtaining a charging order upon money in court belonging to his debtor, obtain priority over a previous mort- S S 2 1255 MORTGAGE— Several Mortgages. 1256 gagee. Bell, In re, Carter v. Stadden, 54 L. T. 370 I 3i W. R. 363— Kay, J. Insurance Policy— Notice to Company.] — The act 30 & 31 Vict. c. 144, is intended to apply only as between the insurance office and the persons interested in the policy, and does not affect the rights of those persons inter se. Ac- cordingly, where a first incumbrancer on a policy had not given such notice as prescribed by the act, and a second incumbrancer with notice of the prior charge had given the statu- tory notice : — Held, that the second incum- brancer did not thereby obtain priority. New- man T. Newman, 28 Ch. D. 674 ; 54 Ij. J., Ch. 598 ; 52 L. T. 422 ; 33 W. B. 505— North, J. Begistry— Beal Estate in Middlesex — Share in Proceeds of Sale of.] — The local registry acts are intended to apply only to dealings at law or in equity with the land itself. Accordingly an incumbrancer upon a share in the proceeds of real estate in Middlesex devised in trust for sale obtains no priority over other incumbrancers on such share by registering his mortgage deed, and the priorities of such incumbrancers rank ac- cording to the dates of their respective notices to the trustees. Maleolm v. Gharlesworth (1 Keen, 63) approved. Arden v. Arden, 29 Ch. D. 702 I 54 L. J., Ch. 655 ; 52 L. T. 610 ; 33 W. E. 593— Kay, J. 3. NOTICE OP PEIOR MOETGAaE. Order of Notices to Trustees.] — Although formal notice to the trustee of the proceeds of real estate devised in trust for sale or of a chose in action, of an incumbrance thereupon does not give priority over an earlier incumbrance of which the trustee may have obtained accidental notice, the converse proposition that incum- brances are to rank not in the order of notices given by the incumbrancers but of accidental knowledge obtained by the trustees, does not hold good. Arden v. Arden, supra. Notice to Trustees, Effect of — Mortgagor entitled to two Properties.] — A mortgagor was entitled to a reversionary interest in the residuary estate of a testator, and was also entitled to a life interest in certain sums of money under his own marriage settlement. Before 1872 he mortgaged both his reversionary and life interests to divers persons. Notice of all these mortgages was given to the trustees of both funds before any notice of the next-mentioned mortgage had been given. In 1872 he mortgaged his reversionary interest alone to the defendant, who gave notice to the trustees of that fund. In 1876 and subsequent years the mortgagor made five subsequent mort- gages of his life interest to the plaintiffs, of which notice was given to the trustees of that fund. The plaintiffs in 1880 took a transfer of the securities prior to the defendant's mortgage of 1872. The defendant took two further charges on the reversionary interest, of neither of which did he give notice to the trustees thereof. An action having been brought by the plaintiffs for foreclosure of the reversionary and life interest : — Held (reversing the decision of Pearson, J.), that the defendant on paying off the plaintiffs' mortgages which were prior to his mortgage of 1872 was entitled to an assignment of both pro- perties, although his mortgage included only one : Held, that as regards the defendant's two further charges on the reversionary property, and the plaintiffs' five mortgages on the life interests, they must be redeemed in order of date respec- tively, notwithstanding the plaintiffs' notices as to the life interests : — Held, also, that the plaintiffs thus becoming the last mortgagees as well as the first must pay the costs of the suit if they did not redeem. Mutual Life Assurance Society v. Langley, infra. Notice to Solicitor — Conveyancing Act, 1882, s. 3.] — In June, 1875, A. mortgaged his share of trast property to B. by deed, which did not disclose any prior charge, and contained the usual covenant by A. that he was entitled to assign free from incumbrances. Notice of this mortgage and of a further charge created in May, 1877, was served on behalf of B. on the trustees of the property in November, 1881. A.'s share was subject to a prior mortgage to B., a solicitor, who was paid off in 1873, when a fresh mortgage was executed to C, which in July, 1874, was transferred by 0. to D. (with a further charge in February, 1881). B. was solicitor for the trustees and A. the mortgagor, and had acted as solicitor for C. and D. in the mortgage transactions of 1873 and 1874, and also as solicitor for B. in the mortgage transaction of June, 1875. The trustees had not received notice of any charge before receiving notice of E.'s mortgage in November, 1881 : — Held, having regard to s. 3, sub-s. 1, cl.- 2, of the Conveyancing Act, 1882, that B.'s charge, of which notice was first given, was entitled to priority, as his mortgage deed shewed a title in A. free from incumbrances ; and that as the court declined to infer that B. had any recollection, or that inquiries made by him when acting as solicitor for E.in the trans- action would have elicited from A. the existence of any prior incumbrance, it could not be said that although B. had acted as solicitor for the parties in the previous mortgage transactions, notice of any prior charge affecting the property had come to his knowledge as the solicitor of B. in the mortgage transaction of June, 1875. Cousin's Trusts, In re, 31 Ch. D. 671 ; 55 L. J., Ch. 662 ; 54 L. T. 376 ; 34 W. B. 393— Chitty,J. Advances by first Mortgagee — Notice of Second Mortgage.] — The principle of the decision in the case of Hopkinson v. Holt (9 H. L. C. 514), is not confined in its application to the law of England, but it is applicable also to the law of Scotland. M., who was indebted to the respondent bank, conveyed certain freehold property in Greenock to them to hold in accordance with the terms of a " back letter " " in security and until full and final payment of all sums of money due or which may hereafter become due by me to you." Some time afterwards she assigned all her re- maining interest in the property to the appellant bank, as security for the balance due under two bills of exchange, and notice of this assignment was given to the respondents. After notice of the assignment the respondents made further advances to M. She afterwards became bankrupt, and the security proved insufficient to meet the claims of both banks : — Held, that the respondent 1257 MOKI GAGE— Rights of Mortgagees and Mortgagors. 1258 bank had no power to bind the security by further advances after they had notice of the assignment to the appellant bank, notwithstand- ing the terms of the back letter. Union Bank of Scotland v. National Bank of Scotland, 12 App. Cas. 53 ; 56 L. T. 208— H. L. (Sc.) See also Lloyd's BanMng Co. v. ■/braei, ante, col. 1251, and Macnatnara's Estate, In re, ante, col. 1244. A registered deed of mortgage to secure moneys due and further advances is, as regards a puisne mortgage, a valid security for such further advances, if made bonS, fide, and without notice of the subsequent mortgage, though after its registration. 0' Byrne's Estate, In re, 15 L. K., Ir. 373— C. A. lien of Company for Debts subsequently incurred by Shareholder.] — A member, who was also a customer, of a trading company formed under the Companies Act, 1862, deposited the certificates of his shares with the bank to secure an advance, and notice of the deposit was given to the company. One of the articles of association provided that the company should have " a first and permanent lien and charge " on every share for all debts due to them from the holder : — Held, first, that the notice was not rendered nugatory by s. 30 of the Companies Act, 1862, but affected the company in its trading capacity with know- ledge of the appellants' interest ; secondly, that the article did not exclude the application of HopTiinson v. Bolt (9 H. L. C. 514), and that the company's lieu for debts incurred to them by the member after the notice must be postponed to the bank's charge. Bradford BanMng Company v. Briggs, 12 App. Cas. 29 ; 56 L. J., Ch. 364 ; 56 L. T. 62 ; 35 W. E. 521— H. L. (E.) Begistration of Lis Pendens.] — Registration of a petition for sale by the second mortgagee as a lis pendens has not the effect of notice to the first mortgagee, so as to effect the priority of further advances made by him in ignorance of such petition and registration. 0' Byrne's Estate, In re, 15 L. E., Ir. 373— C. A. Stop Order — Fund in Court.] — A second incumbrancer of a fund in court, who at the time of taking his security had notice of the existence of the first incumbrance, cannot, by obtaining a stop order, gain priority over the first incum- brancer, even although the latter never obtains a stop order. Holmes, In re, 29 Ch. D. 786 ; 55 L. J., Ch. 33— C. A. An incumbrancer who obtains a stop order on a fund in court does not lose his priority over a previous incumbrancer who has obtained no stop order, by the fact that he had notice of the previous incumbrance at the time of obtaining the stop order, if he had no notice of it when he took his security. Elder v. Maclean (5 W. E. 447) observed upon. Mutual Life Assurance Society v. Langley, 32 Ch. D. 460 ; 54 L. T. 326 — C A. Affirming 53 L. J., Ch. 996 ; 32 W. E. 791— Pearson, J. Constructive Notice of Fraud.] — See Jfational Provincial BanU of England v. JaeTtson, ante, col. 1253. VI. EIGHTS or MORTGAGEES AND M0BTGA60BS. 1. POWER OF SALE. Freeholds and Trade Machinery.]- Thepower of sale incident to the estate of the mortgagee under s. 19 of the Conveyancing Act, 1881, which enables him to sell the " mortgaged property or any part thereof," does not authorise him to sell the trade machinery apart from the freehold. Yates, In re, Batclieldor or Batclielor v. Yates, 38 Ch. D. 112 ; 57 L. J., Ch. 697 ; 69 L. T. 47 ; 36 W. E. 563— C. A. Proviso restricting Exercise — ^Notice to Mort- gagor — Waiver — Purchaser's Protection Clause.] — ^A proviso relieving a purchaser under a power from inquiring as to the regularity of a sale does not protect a purchaser who knows of an irregu- larity which cannot have been waived ; — Qusre (per Bowen, L. J.), whether the same rule would apply where the irregularity was one which might have been waived. Parltinson v. Sanlury (2 L. E., H. L. 1) followed. Selwyn v. Garfit, 38 Ch. D. 273 ; 57 L. J., Ch. 609 ; 59 L. T. 233 ; 36 W. E. 513— C. A. A mortgage deed contained a covenant to pay at the expiration of six months, and a power of sale in the usual form, with a proviso that the power should not be executed until the mortgagee had given notice to the mortgagor to pay off the debt and default should have been made for three months. The deed con- tained also the usual clause for the protection of purchasers in any sale purporting to be made under the power. The mortgagor subsequently incumbered his equity of redemption. Two months after the date of the mortgage the mort- gagee gave notice to the mortgagor to pay off the debt, and seven months after the date of the mortgage sold the property to the defendant : — Held, in an action by the mortgagor to set aside the sale, that three months not having elapsed since default in payment of the mortgage debt, the proviso had not been complied with, and the sale was invalid ; that as the purchaser must be taken to have known that the proviso had not been compKed with, she was not protected by the protection clause ; and that the mortgagor having incumbered his equity of redemption, and, therefore, not being in a position to waive the necessity of notice, the purchaser had no right to assume that there had been any such waiver, lb. Purchase by Disqualified Person — Sub-pur- chase by Person not Disqualified.] — A building society, who were mortgagees from the plaintiff, put up the mortgaged property for sale by auction in lots. The secretary of the society bid on his own account for, and was de- clared the purchaser of, five of the lots. The bids were more than the reserved prices and were bon^ fide, and the people at the sale knew that the bidder was the secretary of the society, and that the bids were bonS, fide. After the sale the secretary transferred the benefit of his contract as to three of the lots to other persons, who would not themselves have been disqualified as purchasers, and they signed con- tracts with the society to purchase the three lots. The mortgagor having brought an action to set 1259 MOETGAG-E — Rights of Mortgagees amd Mortgagors. 1260 aside the sales of the five lots, North, J., held that the sale, as to the two lots retained by the secretary, could not be supported, but that the sales of the three other lots were valid. On appeal, the mortgagor contended that the judg- ment ought, as to all the five lots, to have declared that the plaintiff was entitled, at his option, either to have the sales set aside, or to have the lots put up again by auction, and the sales set aside only if larger prices were ofiered at the re-sales :— Held, that, whether this form of relief could have been obtained against the secretary if claimed by the pleadings, it could not be given where not so claimed, and that as the other pur- chasers had contracted with the mortgagees themselves, the sales to them were good. Mar- tinson V. Clowet, 52 L. T. 706 ; 33 W. E. 555— C.A. Purchase by Company of which Mortgagee a member — Action to set aside Sale.] — The mortgagors of a quarry brought an action to set aside a sale of the mortgaged property made by the mortgagees under the power of sale in the mortgage to a limited company who were de- fendants to the action. The sale was impeached on the ground that F., one of the mortgagees, was personally interested in the purchase, being at the time of the sale the holder of shares in the company to the amount of one-tenth of the sub- scribed capital of the company and also being the solicitor to the company : — Held, that al- though a mortgagee could not sell to himself, nor could two mortgagees sell either to one of them- selves, or to one of themselves and another, the reason being that there could not be any real independent bargaining as between opposite parties, yet where mortgagees sold to a corpora- tion such as a public company, there were primS, facie two independent contracting parties and a valid contract, and if the bargaining was real and honest, and conducted independently by the mortgagees on the one hand and by the directors on the other, and it was satisfactorily shown that in the concluding terms of the sale the parties were in no way affected by the circumstance that one of the mortgagees had some interest as a shareholder in the company, there was no suffi- cient reason for setting aside the sale ; that in the present case the material terms of the bargain were honestly and independently settled, and were not in any degree affected by the fact that F. subsequently agreed to become a member of and to act as solicitor for the company, and that the sale ought not to be set aside merely because he was a member of and acting as solicitor for the company at the time when the formal con- tract was signed. JParrar v. Farrars, 59 L, T. 619— Chitty, J. Affirmed 40 Gh. D. 395; 58 L. J., Ch. 185 ; 60 L. T. 121 ; 37 W. E. 196— C.A. Injunction to restrain Sale — Payment of Money into Court — Mortgagee in Fiduciary Position.] — The ordinary rule that the court will not grant an interlocutory injunction restraining a mortgagee from exercising his power of sale except on the terms of the mortgagor paying into court the sum sworn by the mortgagee to be due for principal, interest, and costs, does not apply to a case where the mortgagee at the time of taking the mortgage was the solicitor of the mortgagor. In such a case the court will look to all the circumstances of the case, and will make such order as will save the mortgagor from oppression without injuring the security of the mortgagee. Macleod v. Jones, 24 Ch. D. 289 ; 53 L. J., Ch. 145 ; 49 L. T. 321 ; 32 W. E. 43— C. A. By Mortgagor and First Mortgagee — Notice of Second Mortgage — Application of Proceeds.] — ^A mortgagor of a leasehold house, with the concurrence of the first mortgagees, who had notice of a second equitable mortgage, sold the property. Upon completion the balance of the purchase-money, after payment of the first mort- gagees, was handed to the mortgagor. In an action by the second mortgagees against the mortgagor (who did not appear) and the first mortgagees : — Held, that the first mortgagees were liable to make good to the plaintiffs the amount of their security to the extent of the balance of the purchase-money. The doctrine in Peacoah v. Burt (4 L. J., Ch. 33) will not be extended. Dictum of Wood, V.-C, in Bates v. Johnson (Joh. 304, 313) as to the right of a first mortgagee to transfer to a third mortgagee in preference to the second, questioned. West London Commercial BanTt v. Reliance Perm,a- Tient Building Society, 29 Ch. D. 954 ; 54 L. J., Ch. 1081 ; 53 L. T. 442 ; 33 W. E. 916— C. A. Interest on Surplus Proceeds — Amount under- stated by Mortgagee — Costs.] — Where a mort- gagee sells under his power of sale and, after he has paid himself his debts and costs out of the purchase-money, a surplus remains in his hands, it is his duty, if he cannot ascertain who are the persons entitled to the surplus, to set it apart so as to be fruitful for their benefit, and if he fails to do so he will be charged with interest at 4 per cent, from the time of the completion of the sale. Charles v. Jones, 35 Ch. D. 544 ; 56 L. J., Ch. 745 ; 56 L. T. 848 ; 35 W. E. 645— Kay, J. A mortgagee in possession sold xmder his power of sale, and retained surplus proceeds of sale. In an action against him for accounts he admitted that a sum was due from him, and paid such sum into court. On the taking of the accounts it appeared that a considerably larger sum was due : — Held, that he ought not to be allowed his costs of taking the accounts. Ih. Mortgagee's Bight to retain more than Siz Years' Arrears of Interest.] — S. 42 of the Statute of Limitations (3 & 4 Will. 4, u. 27) does not affect the right of a mortgagee who has sold under his power of sale to retain out of the pro- ceeds more than six years' arrears of interest. MarsTifield, In re, Marslifield v. Hutchmgs, 34 Ch. D. 721 ; 56 L. J., Ch. 599 ; 56 L. T. 694 ; 35 W. E. 491— Kay, J. After the judgment for the administration of the estate of a second mortgagee of real estate, the first mortgagees sold the mortgaged property under their power of sale and received the pro- ceeds. A summons in the action was then taken out by the plaintiff, a beneficiary under the will of the second mortgagee, to determine the ques- tion whether the first mortgagees were entitled to retain more than six years' arrears of interest. The first mortgagees were not parties to the action, but consented to appear on the summons to argue the question. The second mortgage absorbed all the possible surplus of the proceeds of sale : — Held, that the first mortgagees were 1261 MORTGAGE — Rights of Mortgagees and Mortgagors. entitled to retain more than six years' arrears of interest. Edmunds v. Waugh (1 L. E., Eq. 418) approved of. lb. Sale by Auction — Costs of Abortive Sale.]— On a sale by auction on behalf of a mortgagee, in exercise of the power of sale contained in his mortgage deed, the acceptance by the auc- tioneer, on behalf of the vendor and with his concurrence, of a cheque (which was dishonoured on presentation) in lieu of cash for the deposit, is not, having regard to the common practice at sales by auction, unreasonable, and is not such an act of negligence on the part of the mort- gagee as to deprive him of his right to the costs of the abortive sale. Farrer v. Lacy, 31 Ch. D. 42 ; 55 L. J., Ch. 149 ; 53 L. T. 515 ; 34 W. E. 22 — O.A. Costs — fiemuneration of Auctioneer.] — A testator's real estate was subject to a mortgage for 3,000Z. The property was put up for sale by an auctioneer and not sold, as the reserve price (7,000?.) was not reached. The auctioneer sub- sequently sold the property by private contract at the reserve price. On the mortgagees bring- ing their accounts of the sale before the chief clerk, he allowed the auctioneer only the charges usually allowed in cases of sale in court, and struck off 62Z. 10s. from their bill for com- mission. An action for the administration of the testator's estate came on for further con- sideration, together with a summons by the mortgagees to vary the chief clerk's certificate by allowing the 62Z. 10*. : — Held, that the auctioneer was only entitled, beyond expenses for outgoings, to a proper remuneration according to the scale allowed by the court in sales of property under its control, and that auctioneers had no right to agree amongst themselves to fix a certain scale of remuneration upon which to charge the per- sons who employed them, and that the chief clerk was right in disallowing the 62Z. Ws. Walford, In re, Walford v. Walford, 59 L. T. 897— Kay, J. 2. LEASES- DISTEBSSES. By mortgagor subsequent to mortgage — Notice by Mortgagee to Tenant to pay Eent to him.] — C, the owner of a leasehold estate which was subject to a mortgage, entered without the privity of the mortgagees into an agreement with P. to grant him a lease for twenty-one years, and in 1875 P. took possession under this agreement. On the 25th of March, 1881, the mortgagees' solicitors wrote to P. stating that they, on behalf of the mortgagees, had with- drawn C.'s authority to receive the rents, and asking him to pay the rent due that day and all future rent to them. P. wrote to ask C. whether he ought to pay according to the notice, and C. replied that he would be correct in doing so. P. consulted his solicitors, who inspected the mort- gage deed, and advised him that the mortgagees could claim rent from him. P. therefore paid the mortgagees the rent due on the 25th of March, and on the 22nd of June gave them notice to determine his tenancy at Christmas. At the end of the year the mortgagees refused to accept pos- session, and in June, 1882, they and C. commenced this action to compel P. to take a lease according 1262 to the agreement : — Held, that the notice by the mortgagees to the tenant to pay rent to them, and the payment accordingly, did away with the agreement between 0. and P., and made P. tenant from year to year to the mortgagees, and that specific performance of the agreement could not be decreed. Corhett v. Plowden, 25 Ch. D. 678 ; 54 L. J., Ch. 109 ; 50 L. T. 740 ; 32 W. E. 667— C. A. Notice to pay Rent to Mortgagee — Rent paid to Mortgagee is Money paid for Landlord.] — A mortgagor let the mortgaged premises subse- quently to the mortgage. During the quarter ending at Michaelmas the mortgagees gave a notice to the tenant informing him of the existence of the mortgage, and that the prin- cipal sum was stiU due and owing together with an arrear of interest, and requiring him to pay the rent thereafter to accrue due to them. The rent which became due at Michaelmas being still unpaid, an order was made in an action against the mortgagor appointing the plaintiff, who had recovered judgment, receiver of the rents of the premises, " without prejudice to the rights of any prior incumbrancers who may think proper to take possession of the same by virtue of their respective securities." Subse- quently the mortgagees threatened the tenant with legal proceedings unless he paid the rent to them, and the tenant thereupon paid them the quarter's rent due at Michaelmas. The receiver claimed payment of such rent from the tenant : — Held, by the Queen's Bench Division, that the tenant's occupation after notice to pay rent to the mortgagees was evidence from which a tenancy to the mortgagees ought to be inferred, and therefore he was justified in paying the rent to them, and could not be liable for the same rent to the mortgagor or any one claiming under him : — Held, on appeal, that the tenant had not been guilty of any disobedience of the receivership order in paying rent to the mort- gagees, they being prior incumbrancers whose rights were reserved by the order ; that the tenant, having paid the rent to the mortgagees under compulsion of law and in consequence of his lessor's default, could set up such payment in answer to the claim for the rent by the receiver, who claimed through his lessor ; and that consequently the claim of the receiver could not be maintained. Johnson v. JoTies (9 A. & E. 809) approved and followed. JJnderhay v. JUad, 20 Q. B. D. 209 ; 57 L. J., Q. B. 129 ; 58 L. T. 457 ; 36 W. E. 298— C. A. Notice to pay Eent to Mortgagee — Mort- gagee entitled to Benefit of Covenants.] — A mortgagor in possession let the mortgaged pro- perty without the concurrence of the mortgagees. The lease was one authorized by s. 18 of the Conveyancing Act, 1881. The lessee then ad- vanced certain moneys to the mortgagor upon the terms that the lessee should retain the rent as it became due until the moneys were repaid. Subsequently the mortgagees gave notice to the lessee informing him of the mortgage, and re- quiring him to pay them the rent thereafter to become due, and not to pay it to the mortgagor. The lessee having refused to comply with the notice, the mortgagees brought an action to recover possession under a condition of re-entry upon non-payment of rent contained in the 1263 MORTGAGE — Eights of Mortgagees and Mortgagors. 1264 lease: — Held, that, by the combined effect of ss. 10 and 18 of the Conveyancing Act, 1881, the mortgagees, after giving the above notice to the lessee, were entitled as reversioners to enforce the covenants and provisions in the lease, and were therefore entitled to recover possession of the property under the condition of re-entry ; and, further, that the agreement between the mortgagor and lessee as to the retention of the rent was not binding upon the mortgagees. Mimicipal Permanent Building Society v. Smith, 22 Q. B. D. 70 ; 58 L. J., Q. B. 61 ; 37 W. E. 42 — C.A. By Mortgagees in Possession — Clause binding Tenant to take Beer, &e., from them — Account — Interest.] — A leasehold public-house was mort- gaged to brewers who entered into possession, and after carrying on the business for some time, leased the public-house to tenants, with agree- ments binding the tenants to take their beer, &c., from them, under which they derived a, large profit from the sale of beer, &c. They after- wards sold the public-house under the power of sale in the mortgage : — Held, in an action by the mortgagor for an account, that the mort- gagees were not entitled to interest on the cost of beer supplied while they were carrying on the business ; that they were not bound to account for the profits derived from the sale of beer, &c., to the tenants of the public-house ; but that they were chargeable with the increased rent they might have obtained if the tenants had been under no restriction as to purchasing their beer. White V. City of London Brewery Company, 39 Ch. D. 559 ; 58 L. J., Ch. 98 ; 60 L. T. 19 ; 36 W. E. 881— North, J. Affirmed W. N., 1889, p. 114— C. A. Attornment Clause — Distress — Whether a Bill of Sale.] — See Bills of Sale, I. 1. Distress by mortgagor in Ms own lTame.]^A mortgagor in possession has, in the absence of interference by the mortgagee, an implied authority from the mortgagee to distrain upon the tenant of the mortgaged property for the rent due in respect thereof ; and, although it may be necessary for the moi-tgagor to justify the distress as bailiff of the mortgagee, it is not necessary that the distress should be made in the mortgagee's name. Reece v. Strousierg, 54 L. T. 133 ; 50 J. P. 292— D. Receiver appointed by Mortgagee — Subse- quent Distress by Mortgagor.] — A mortgagee appointed a receiver of the income of the mort- gaged property under the Conveyancing Act, 1881, and gave notice of the appointment to the mortgagor. The mortgagor nevertheless dis- trained for rent becoming due after the appoint- ment of the receiver. The mortgagor claimed to distrain for the protection of the property, alleging that the receiver had been negligent in collecting the rent : — Held, that an injunction must be granted to restrain the' mortgagor from interfering with the receiver or receiving the rent. Bayly v. Went, 51 L. T. 764— Kay, J. Semble, that even if the mortgagor had proved negligence on the part of the receiver, distraining for the rent was not the proper mode of protect- ing his interests. Ih. 3. MOKTGAGEES IN POSSESSION. Lease by.] — See supra. Power to Manage Block of Sesidential Apart- ments.] — A mortgage of a large block of build- ings, let out in residential apartments, and con- taining a common kitchen and salle 4 manger for the use of the tenants, contained an assign- ment of the " rents and profits " and a power to the mortgagees to enter on the hereditaments on default of payment and " manage " and receive the rents and profits thereof. The deed con- tained no assignment of chattels, nor any refer- ence to existing arrangements with tenants, but the mortgagor covenanted to pay moneys ex- pended by the mortgagees for any of the purposes thereby authorised. At the date of the mortgage the apartments were let out to tenants under agreements, made by a former mortgagee (who had been paid off), by some of which the tenants stipulated for the supply by the landlord of attendance and cooked food, such food being generally supplied according to a tarifE from time to time fixed by the manager. The mort- gagees having entered into possession, continued to supply all the tenants, whether they had con- tracted for the supply of attendance and food or not, with attendance and cooked food, and in so doing managed the premises at a loss : — Held, in an action by second mortgagees for an account, that the first mortgagees were entitled to be recouped the losses made by them in management, not only out of the rents of the property, but out of the surplus proceeds of sale thereof. Bompas v. King, 33 Ch. D. 279 ; 56 L. J., Ch. 202 ; 55 L. T. 190-0. A. Mortgage of Coal Mines — Accounts — Value of Coal Improperly Worked — Deductions — Costs of Severance and of Baising.] — The plaintiffs were mortgagees in possession of a colliery, and were also treated by the court as lessees of the same colliery under a lease for a fixed term of years at a rent and a certain royalty for all coal gotten. The lease contained covenants to leave pillars of coal to support the roof and not to work or remove the pillars. -The mortgagees underlet the colliery and gave their sub-lessees permission to work and remove the pillars, which they did : — Held, that in taking the accounts as against mortgagees in possession, the mortgagees having allowed their sub-lessees to take the coal, must be treated as having taken it them- selves, and, having so taken it wrongfully in breach of the covenants in the lease, must be charged, not with the amount of the royalty reserved, but with the full value of the coal, subject to a deduction for the costs of bringing it to the surface, but not for the costs of severance ; and the foreclosure, which had been made absolute before the appeal was heard, was reopened. Livingstone v. Sawyards Coal Com- pany (5 App. Cas. 25) distinguished. Taylor v. Mostyn, 33 Ch. D. 226 ; 55 L. J., Ch. 893 ; 55 L. T. 651— C. A. Beceipt of Bents and Profits — How deter- mined.] — The fact that mortgagees are in receipt of the rents and profits of the mortgaged estate does not necessarily make them chargeable as mortgagees in possession. The question whether they are mortgagees in possession depends upon 1265 MOETGAGE — Bemedies for Non-'payment of Mortgage-money. 1266 whether they have taken out of the mortgagor's hands the power and duty of managing the estate and dealing with the tenants. Noyes v. Pollooli, 32 Ch. D. 53 ; 55 L. J., Ch. 513 ; 5i L. T. 473 ; 34 W. E. 383— C. A. B. was the agent of a mortgagor, and received the rents of the estate for him, and applied them in payment of the interest to the mortgagees. The mortgagees wrote to B. inclosing notices to the tenants to pay the rents to them, which he was to serve on them if the mortgagor should attempt to interfere. B. replied promising to pay the rents to the mortgagees, and not to the mortgagor. The notices were not served on the tenants, but B. paid the rents as he received them to the mortgagees : — Held, that the mort- gagees could not be charged as mortgagees in possession. Ih. Occupation Sent, Increase of — Honey ex- pended.] — Where a first mortgagee in possession, after decree for redemption, has expended money on permanent improvements on the mortgaged property, he is not to be charged with an in- creased occupation rent by reason of the value of the property having been increased by the improvements he has effected, unless the ex- penditure in improvements is allowed to him. BrwU V. CoTnmbell, 54 L. J., Ch. 1077 ; 63 L. T. 428— C. A. Appointment of Eeceiver.] — Under s. 25, sub- s. 8, of the Judicature Act, 1873, a mortgagee in possession is entitled to the appointment of a receiver, notwithstanding that he has been paid all his interest and costs out of rents received by him while in possession, and that he has surplus rents in his hands. Mason v. Westoiy, 32 Ch. D. 206 ; 55 L. J., Ch.. 507 ; 54 L. T. 526 ; 34 W. E. 498— V.-C. B. 4. IN OTHEE CASES. Liability of Vainer to Mortgagee for Negli- gence.] — See Cann v. WilUon, ante, col. 824. Restraining mortgagor cutting down Timber.] — On a motion by a mortgagee for an injunction to restrain the mortgagor from cutting timber standing upon the mortgaged land, it was shown that by a mortgage dated the 19th March, 1874, about nine acres of agricultural land near Ban- bury were mortgaged to secure 6001. and interest. In January, 1 880, the mortgagor advertised eleven trees standing upon the land for sale, with other timber standing on adjoining land. The mort- gagee brought an action for an injunction to re- strain him. It was admitted that the security was insufficient in its present state. The plain- tiffs produced evidence that the land might at some time be used as building land, and for that purpose the timber would increase its value. On the other hand the mortgagor produced evidence that the chance of the land becoming building land was very remote, that the trees were ready to cut, and would only deteriorate if left standing, and that if they were cut down the land could be let in allotments at a higher rent. He offered to pay the money received by the sale in reduction of the mortgage debt. The evidence as to the deterioration of the timber by standing was contradicted: — Held, that the mortgagee had a right to have the timber left standing on the land, and the injunction must be granted. Harper v. Aplin, 64 L. T. 383 — Pearson, J. Voluntary Settlement— Trust for Accumula- tion—Trust for Benefit of Mortgagees.]— By a voluntary settlement certainfreehold estates were settled, subject to the mortgages subsisting there- on, to the use of the settlor for life, with remain- der to the use of trustees for 500 years, and sub- ject thereto in strict settlement. And the trusts of the term were declared to be that the trustees should during the period of twenty-one years from the death of the settlor receive out of the rents of the estate the annual sum of 1,000Z. and accumulate it at compound interest, and should at the expiration of that period, or from time to time dui'ing that period, as they might think fit, apply the accumulated fund in satisfaction of the mortgages then charged on the estate, and should pay the surplus of the rents to the person entitled to the immediate reversion of the estate. Seven years after the death of the settlor the first tenant in tail in possession barred the entail and acquired the fee simple subject to the mort- gages ; and he then claimed the right to stop the accumulations and to receive the accumulated fund and the whole future rents of the estate : — Held, that the mortgagees were cestuis que trust under the deed equally with the owner of the estate, and that he could not stop the accumula- tions or receive the accumulated fund without their consent. The doctrine of Garrard v. Lauderdale (2 Euss. & My. 451) does not apply to provisions for creditors which do not come into operation till after the death of the settlor. Fitzgerald's Settlement, In re, 37 Ch. D. 18 ; 57 L. J., Ch. 594 ; 57 L. T. 706 ; 36 W. E. 385— C. A. Bight to Becover Mortgage Seeds.] — 'See Manners v. Mew, ante, col. 1250. Bight of Mortgagee to Benewal of Licence of Beer-house.] — See Garrett v. Middlesex JJ., ante, col. 1052. VII. BEMEDIES FOE NON-PAYMENT OF MOETGAGE-MONEY. 1. FOEECLOSUEE. a,. Parties. Glebe Land — Patron.] — A vicar is a person having a limited interest within the meaning of s. 3 of the Landowners West of England and South Wales Land Drainage and Inclosure Com- panies Act, and may charge his glebe land there- under. To a foreclosure action under such a mortgage, the patron of the living is not a neces- sary party. Goodden v. Coles. 59 L. T. 309 ; 36 W. E. 828— Kekewich, J. Trustee of Equity of Bedemption.] — A mort- gagor having conveyed the equity of redemption together with other property, to a trustee in trust for scheduled creditors : — Held, in a fore- closure action, that the trustee sufficiently repre- sented the creditors. BoMe v. Mauley, 28 Ch. D. 664 ; 54 L. J., Ch. 636 ; 52 L. T. 246 ; 33 W. E. 409— Chitty, J. 1267 MOETGAGE — Remedies for Non-payment of Mortgage-mmey. 1268 Infant Defendant— Day to show Cause.]— In an action by an equitable mortgagee, without any memorandum of deposit of title -deeds, against the widow and infant heir-at-law of the mortgagor for foreclosure : — Held, on motion for judgment, the defendants not having appeared, that the infant heir must be ordered to convey the estate when he attained the age of twenty- one years, and that he must have a day to show cause in the usual way. Price v. Carver (3 My. & Cr. 157) followed. Mellnr v. Porter, 25 Ch. D. 158 ; 53 L. J., Ch. 178 ; 50 L. T. 49 ; 32 W. E. 271— Kay, J. Judgment for foreclosure was made absolute against an infant without giving time to show cause, the mortgagee offering to pay the infant's costs as between solicitor and client, and the guardian of the infant being of opinion that it was for the benefit of the infant that the order should be made, and there being evidence that the mortgage debt greatly exceeded the value of the property. Younge v. Cocker, 32 W. B. 359 — Chitty, J. b. Practice. Statement of Claim — Non-appearance.] — In a foreclosure action by the transferee of the first mortgagee, the statement of claim alleged that the defendants other than the mortgagor claimed to have some charge upon the mortgaged pre- mises subsequent to the plaintiff's charge. None of the defendants, including the mortgagor, put in a defence or appeared at the bar : — Held, that the plaintiff was entitled to a foreclosure judg- ment on the pleadings, allowing one period for redemption as against all the defendants. Piatt T. Mendel, 27 Ch. D. 246 ; 54 L. J., Ch. 1145 ; 51 L. T. 424 ; 32 W. E. 918— Chitty, J. Bequest for Sale by Parties Interested,] — In . an action for foreclosure by first mortgagees of a building estate at Manchester, the second mort- gagees and mortgagor requested a sale, and offered to pay into court a sum sufScient to meet the costs of sale. The value of the estate was insuflBcient to cover what was due on the first mortgage ; but the applicants produced evidence stating that since the date of the action such value had, in consequence of the subsequent passing of the Manchester Ship Canal Act, in- creased, and was likely to continuously increase : — Held, that the court had no power to grant the application, notwithstanding the discretion conferred by the Conveyancing Act, 1881, s. 25, sub-s. 2. Merchant Banldng Com/pawg v. Lon- don and Sanseatia BanTi, .55 L. J., Oh. 479 — Chitty, J. At the request of a second mortgagee, the court ordered a sale of some settled property that had been mortgaged, and for foreclosure in case a sale were not effected. Saul v. Pattinson, 55 L. J., Ch. 831 ; 54 L. T. 670 ; 34 W. E. Sol- Pearson, J. Appointment of Keceiver.] — A legal mortgagee being in possession of the mortgaged property, applied to the court for the appointment of a receiver : — Held, that although the mortgagee might, under the Conveyancing Act, 1881, ap- point a receiver without coming to the court, it was more desirable, where an action was pend- ing, that the appointment should be made by the court under the Judicature Act, 1873. Tillett v. Nixon, 25 Ch. D. 238 ; 53 L. J., Ch. 199 ; 49 L. T. 598 ; 32 W. E. 226— Pearson, J. After Foreclosure absolute.] — After judgment for foreclosure absolute, the action being at an end, the plaintiff cannot obtain an order for the appointment of a receiver of the mortgaged property, even though the convey- ance of the property to the plaintiff remains to be settled. Wills v. iMff, 38 Ch. D. 197 ; 57 L. J., Ch. 563 ; 36 "W. E. 571 — Chitty, J. Aflarmed W. N. 1888, p. 191— C. A. Mortgagor in Possession — Occupation Bent — Eeceiver.] — In a foreclosure action against a mortgagor in possession, an order having been made for the appointment of a receiver and for the tenants to attorn and pay their rents in arrear and growing rents to such receiver : — Held, that the possession of the mortgagor being rightful, he was liable to pay an occupation rent from the date of demand by the receiver only, and not from the date of the order appointing the receiver. Yorkshire Banking CompoMy v. Mitllan, 35 Ch. D. 125 ; 56 L. J., Ch. 562 ; 5S L. T. 399 ; 35 W. E. 593— Chitty, J. Counter-claim for Account — Particulars of Beoeipts.] — It was alleged by counter-claim to a redemption action that the mortgage com- prised : (1) certain commission ; (2) a sum also secured by bills of exchange ; (3) a sum due on open account, and that the mortgagee had re- ceived divers sums in respect of the bills of exchange and on the open account. The mort- gagee counter-claimed for an account and fore- closure or sale. Particulars of the sums received by him on the bills of exchange and open account were ordered to be given. £Jemp v. Goldberg, 36 Ch. D. 505; 56 L. T. 736 — North, J. Accounts and Inquiries.] — In foreclosure actions where there is no preliminary question to be tried, the plaintiff may obtain, under Eules of Supreme Court, 1883, Ord. XV., an order for an account with all necessary inquiiies, and the usual directions as in a common foreclosure judgment nisi. Such order should be applied for by summons in chambers, and not by motion in court, and only the costs of a summons in chambers attended by counsel will be allowed. Smith V. Davies, or Barnes v. Smith, 28 Ch. D. 650 ; 54 L. J., Ch. 278 ; 52 L. T. 19 ; 33 W. E. 211— Chitty, J. Improvements by Mortgagee in Posses- sion.] — In a foreclosure action by a first mort- gagee, who was also third mortgagee, and the mortgalgor, the plaintiff having entered into possession of the mortgaged property and laid out sums of money in lasting improvements, an account was directed of all the sums "properly" laid out by the plaintiff "as mortgagee" in lasting improvements upon the property^ Hougli- ton V. Sevenoaks Estate Company, 33 W. E. 341 — Pearson, J. Interest — Form of Order.]— A mortgagee claimed payment, or, in default, sale or fore- closure. Judgment was given for immediate payment of principal and interest proved to be due, and, in default, for foreclosure, the account 1269 MOETGAGE — Remedies for Non-payment of Mortgage-money. 1270 being directed with interest at the rate provided by the mortgage, the plaintiflE bringing into aoeoimt what, if anything, should be received under the judgment. Lee y. Duiuford, 54 L. J., Ch. 108 ; 51 L. T. 590— North, J. " Bight of Defendants to insist on Plain- tiff's bringing in Account — Amendment of Summons.] — Mortgagees for a term of a colliery brought an action for foreclosure, seeking de- clarations that the original mortgage deed was a good exercise of a power of leasing, and that the sums secured by a later deed were also charged on the term created by the first deed. They obtained a decree giving them the declarations asked, and directing the usual accounts in the case of mortgagees in possession, with directions for foreclosure in default of payment. A summons was taken out by the defendants to proceed with the judgment, and the chief clerk directed the plaintiffs to bring in their accounts by a certain day, but no order to that effect was drawn up. The plaintiffs afterwards having refused to bring in their accounts on the ground that, as they aUeged, the moneys remaining due to them were many times more than the value of the mortgaged property, and that taking the accounts would therefore be useless, the defen- dants applied on summons for an order that the plaintiffs might bring them in in four days, not asking any alternative relief. The applica- tion was refused on the ground that the defen- dants were not entitled to a four-day order. The defendants appealed : — Held, that the summons must be treated as i£ it had been asked that the plaintiffs might bring in their accounts in four days, or in such other time as the court might think fit, the summons, if necessary, being amended ; and that as the plaintiffs had taken a foreclosure decree, the defendants were entitled to have the accounts brought in, but that the order should be prefaced with a statement that they required them to be brought in. Taylor v. Mostyn, 25 Ch. D. 48 ; 53 L. J., Ch. 89 ; 49 L. T. 483 ; 32 W. E. 256— C. A. Whether this statement would give the court jurisdiction as to the costs if it turned out that the accounts had been asked for vexatiously and unreasonably, and whether the court would not on a substantive application by the plaintiffs stay the taking the accounts if it was satisfac- tonly shewn that taking them would be useless, quaere. lb. Account of Costs.] — The plaintiff in a foreclosure action is, as a general rule, entitled to an account of only principal and interest due to him on his mortgage, and of the costs of the action. To entitle him to an account of any other costs he must make out a special case. But, where the plaintiff was the transferee of a mort- gage, on which interest was overdue at the date of the transfer, and the mortgagor was a bank- rupt : — Held, that the plaintiff was entitled to an account of costs generally. BoUngirolie v. Sinde, 25 Ch. D. 795 ; 53 L. J., Ch. 704 ; 32 "W. E. 427— Pearson, J. Adding Accounts and Inquiries after Judgment,] — When some time after a judgment of foreclosure directing accounts against the plaintiffs as mortgagees in possession, but con- taining no inquiry or direction as to improper working, a probable case was made out that the mortgaged property had been seriously damaged by the improper working of the mortgagees in possession, or persons acting under their authority : — Held, that the mortgagors should not be absolutely foreclosed and left to the remedy of proceeding against the plaintiffs, either as mortgagees or as lessees in respect of their breach of the covenants of the lease, but were entitled to an inquiry with reference to the injury caused, and to a declaration charging the plaintiffs with the amount of the loss or damage caused thereby. Such an inquiry should be obtained either by means of a supplemental judgment, or by an addition to the existing judgment. Taylor v. Mostyn, 33 Gh. D. 226 ; 55 L. J., Ch. 893 ; 55 L. T. 651- C. A. Order for Sale — Conduct of Sale — Security for Costs of Sale.] — An action having been brought to foreclose an equitable mortgage, the plaintiff at the hearing asked for a sale. The defendants did not oppose this, but they wished to have the conduct of the sale. The parties left it to the judge to decide who should have the conduct : — Held, that the defendants ought to have the conduct, because it was most to their interest to obtain the best possible price for the property : — Held, also, that, inasmuch as the defendants alone would be liable for the costs of the sale, there was no reason for requiring them to give security for the costs. 'Waolley v. Cole- man (21 Ch. D. 169) not followed as to such security. Ordered, that the sale should take place out of court, and that the proceeds of sale should be paid into court. Barnes v. Wright, 32 Ch. D. 220— North, J. Default of Appearance — Judgment for Sum due on Covenant — Action for Account and Fore- closure.] — A writ was indorsed with a claim for an account of principal, interest, and costs on a mortgage security, and for foreclosure or sale, and also with a claim for a specific sum for principal and interest due under a covenant in the mortgage deed. The defendant did not appear, and no statement of claim was delivered. The plaintiff moved, under Ord. XIII. r. 3, for liberty to forthwith sign final judgment for the amount indorsed on the writ, and under Ord. XV., for the usual foreclosure judgment nisi : — Held, that under Ord. XIII. r. 3, the plaintiff was entitled to sign judgment for the liquidated demand, notwithstanding that the writ was also indorsed with a claim for an account and foreclosure, but that he was not entitled under Ord. XV. to a foreclosure judg- ment. Observations on Blalte v. Harvey (29 Ch. D. 827). Bissett v. Jones, 32 Ch. D. 635 ; 55 L. J., Ch. 648 ; 54 L. T. 603 ; 34 W. E. 591— Chitty, J. Action for Bedemption and Foreclosure — Form of Judgment.]— In an action by a second mortgagee to redeem the first mortgagee, and to foreclose the mortgagor, the proper form of judg- ment is, that in default of the plaintiff redeem- ing the action is to stand dismissed with costs. Sallett T. Furze, 31 Ch. D. 312 ; 55 L. J., Ch. 226 ; 54 L. T. 12 ; 34 W. E. 225— Kay, J. Form of Judgment — Action on Covenant and for Foreclosure — Time.] — A mortgagee being now entitled to combine in one action his right to judgment on the mortgage covenant against the mortgagor personally, with his right to fore- 1271 MOETGAGrE — Remedies for Non-jpayment of Mortgage-money. 1272 closure, is entitled : — (a) If the amount of debt and interest is proved, admitted, or agreed to at the trial, to judgment for immediate payment of the whole amount ; (b) If the amount is not so proved, admitted, or agreed to, to an account of what is due to him for principal and interest in respect thereof, and to judgment for payment of the whole amount immediately the same is certified — unless in either case the judge in his discretion gives time. Semble, the allowance of one month for payment from the date of the certificate is a reasonable exercise of such dis- cretion. Farrer v. Laoy, 31 Ch. D. 42 ; 55 L. J., Oh. 149 ; 53 L. T. 515 ; 34 W. R. 22— C. A. Personal Judgment against Mortgagor.] — Form of judgment in a foreclosure action, when a personal judgment is taken against the mortgagor on his covenant for payment of prin- cipal and interest. The form in Grundy v. Grice, Seton on Decrees, 4th Ed. vol. ii., p. 1036 (Form No. 2) modified. Hunter v. Myatt, 28 Ch. D. 181 ; 54 L. J., Ch. 615 ; 52 L. T. 509 ; 33 W. R. 411 — Pearson, J. Where a mortgagor in his defence to a fore- closure action did not admit the mortgage debt, but afterwards admitted it at the trial, the court, in giving judgment for personal payment under the covenant and for foreclosure, declined to grant a month's time for payment. Instons V. Elmslie, 54 L. T. 730 ; 34 W. K. 592— Stirling, J • Time for Eedemption — Several Defendants — One Period.] — The settled practice of the court in a foreclosure action, where there are incum- brances subsequent to that of the plaintiff, to grant successive periods of redemption to the subsequent incumbrancers and the mortgagor, will only be departed from where special reason for so doing is shewn. Lewis v. Aberdare and Plymouth Company, 53 L. J., Ch. 741 ; 50 L. T. 451— Kay, J. The fact that there is a contest as to priorities between the subsequent incumbrancers may be a reason for departing from the ordinary practice. Where such a contest was raised upon the pleadings, and the nature of the property and other special circumstances were such as to render any delay peculiarly disadvantageous to the plaintiffs, the court fixed one period of nine months for redemption by the mortgagors (a company in liquidation), and two sets of incum- brancers subsequent to the plaintiffs. Ih. As a general but not invariable rule, when there are several defendants to a foreclosure action, one period for redemption should be allowed to all the defendants. Mutual Life Assurance Society v. Langley, 26 Ch. D. 686 ; 51 L. T. 284 ; 32 W. E. 792— Pearson, J. Where there were two defendants to a fore- closure actioH — the mortgagor and a second mort- gagee who had joined in the plaintiff's security to postpone his previously prior right, and as surety for the plaintiff : — Held, that only one period of six months should be allowed for re- demption by both defendants. JBartlett v. Rees (12 L. R., Eq. 395), and General Oreiit and Discount Company v. Glegg (22 Ch. D. 549) followed. Smith v. Olding. 25 Ch. D. 462 ; 54 L. J., Ch. 250 ; 50 L. T. 357 ; 32 W. K. 386— Pearson, J. Contra, Sweet v. Combley, 25 Ch. D. 463 n.— Fry, J. A., a first mortgagee, brought an action for foreclosure against the mortgagor, his trustee in bankruptcy, and two subsequent incumbrancers, C. and R. The defendants all appeared, and both C. and E. delivered defences. C.'s de- fence alleged that his mortgage was registered in Middlesex without notice, and therefore had priority over R. E.'s defence made no answer to this allegation. At the hearing A. asked for a foreclosure decree, giving only one period of redemption for all the defendants. C. and E. both claimed that the decree should give suc- cessive periods for redemption : — Held, tha* the mere fact that R.'s defence did not deny the allegation of priority in C.'s defence could not be taken as an admission by R. of the priority of C.'s mortgage ; that, therefore, the priorities were in dispute, and the plaintiff was entitled to have only one period of redemption, as in Bartlett v. Bees (12 L. R., Bq. 395). Semble, even in a case in which the priorities are not in dispute, the court will not now give successive periods for redemption. Tufdnell v. Nicholls, 56 L. T. 152— North, J. A first mortgagee is primS, facie entitled to a judgment in a foreclosure action limiting only one period for redemption, both as against sub- sequent incumbrancers and the mortgagor, and where there are conflicting claims as to priority between co-defendants, the practice, as settled by Bartlett v. Bees (12 L. R., Eq. 395), is to grant only one period for redemption. Where, however, the defendants have put in a defence or appeared at the bar and have proved or offered to prove their incumbrances, and there ia no question of priority between them, the court will at the request of the puisne incumbrancers, but not at the request of the mortgagor, limit successive periods for redemption. A mortgagor has no right in himself to more than one period of six months to redeem. Piatt v. Mendel, 27 Ch, D. 246 ; 54 L. J., Ch. 1145 ; 51 L. T. 424 ; 32 W. E. 918— Chitty, J. In a foreclosure judgment against the mort- gagor and subsequent incumbrancers, only one period for redemption will be fixed where none of the defendants appear on the motion for judgment ; whether it is alleged by the state- ment of claim that the subsequent incumbrancers are " entitled," or only that they " claim to be entitled " to charges upon the mortgage pre- mises. BoUe V. Manley, 28 Ch. D. 664 ; 54 L. J., Ch. 636 ; 52 L. T. 246 ; 33 W. R. 409— Chitty, J. Foreclosure absolute — Evidence of Non-pay- ment—Personal Affidavit.] — A mortgagee had obtained a foreclosure judgment nisi, and now moved the court to grant him foreclosure absolute. He had made no afSdavit of non- payment of moneys due to him, but the solici- tor's clerk, who attended on his behalf to re- ceive the money due on the security, had made an affidavit of non-payment. The defendant had not appeared in the action since its com- mencement : — Held, that, on a motion by a mort- gagee for foreclosure absolute, the plaintiff's per- sonal affidavit of non-payment might be dis- pensed with, in spite of the contrary practice laid down in Seton on Decrees, 4th edit. p. 1091. Frith V. Coohe, 52 L. T. 798 ; 33 W. E. 688— Chitty, J. Upon an application for an order for fore- closure absolute, where an affidavit of non-pay- ment had been made by the person attending on 1273 MORTGAGE — Remedies for Non-payment of Mortgage-money. 1274 Where an order nisi for foreclosure and pos- session had been made, the order absolute also provided for possession and was made ex parte. IVithall v. Nixon, 28 Oh. D. 413 ; 54 L. J., Oh. 616 ; 33 W. E. 565— Pearson, J. behalf of the plaintifE to receive the mortgage moneys, the court declined to dispense with an affidavit by the plaintifE stating that he had not received the mortgage moneys between the date of attendance and the date of the application. Sarrow v. SmUh, 52 L. T. 798 ; 33 W. E. 743— Kay, J. Enlarging Time fixed for.] — Where mortgaged premises afford an ample security for the mortgage debt and interest, the court will, when there is a reasonable prospect of the mort- gagor being able to discharge the debt, enlarge the time fixed for foreclosure absolute upon immediate payment by the mortgagor to the mortgagee of a substantial portion of the interest accrued due and costs. Forrest v. Shore, 32 W. E. 356— V.-C. B. Goodwill of Business — Form of Order.] — Where after the commencement of a foreclosure action concerning certain property, subject to a mortgage which included the goodwill of a business, a receiver and manager had been appointed, the court directed a proviso to be inserted in the order for foreclosure, that any person redeeming, or in the event of foreclosure, the plaintiff, should be at liberty to apply to the judge in chambers for payment of any money in court, or in the hands of the receiver. Smith v. Peai-mam, 58 L. T. 720 ; 36 W. E. 681 — Chitty, J. Order for Delivery of Possession.] — A sum- mons for foreclosure asked for delivery of pos- session in the event of foreclosure. The usual foreclosure order was made without any direction as to deHvery of possession. Default in payment having been made, the order for foreclosure was made absolute. The plaintifE then moved in the action for an order en the defendant to deliver up possession of the mortgaged property : — Held, that such an order ought to be made, and that the plaintiff ought not to be obliged to bring a new action for the purpose of recovering posses- sion. KHth V. Day, 39 Oh. D. 452 ; 58 L. J., Ch. 118 ; 60 L. T. 126 ; 37 W. E. 242— C. A. An order for foreclosure absolute in a fore- closure action commenced by summons may, as against the defendant mortgagor in possession (he having been served and not appearing) include an order for delivery of possession by tiim to the plaintiff, even though the summons did not ask for delivery of possession. Best v. Applegate, 37 Ch. D. 42 ; 57 L. J., Ch. 506 ; 57 L. T. 599 ; 36 W. E. 397— North, J. Under Ord. XVIII. r. 2, of the Eules of the Supreme Court, Dec. 1885, the court has juris- diction in a foreclosure action to order delivery of possession where possession is asked, not against a third party, but against the mortgagor, notvrithstanding that the plaintiff has not asked for possession either in the writ or state- ment of claim. Salt v. Edgar, 54 L. T. 374 — Chitty, J. The minutes of the order in. a mortgagee's action, where possession of the mortgaged premises is (inter alia) claimed, should contain a direction that, in default of the defendant redeeming, he should deliver up possession of the mortgaged premises to the plaintiff, inasmuch as the order for possession is a conditional order like a foreclosure order, and requires to be made absolute like a foreclosure order. Williamson V. Burrage, 56 L. T. 702— Chitty, J. Eeceipt of Eents, &o., by Beceiver — Effect of — Order,] — Where a receiver has received rents of mortgaged property between the date of the certificate under a foreclosure judgment and the day fixed for redemption, the mortgagee is not entitled to the rents so received, except on the terms of bringing them into account as between mortgagee and mortgagor, and a fresh date must be fixed for redemption. Jenner-Fust v. Need- ham., 32 Ch. D. 582 ; 55 L. J., Ch. 629 ; 55 L. T. 37 ; 34 W. E. 709— C. A. The court to save the expense and delay of a further reference to chambers allowed mortgagees to file an affidavit showing the exact amount which would be due to them for principal, interest, and costs, after allowing for everything received, brought down to the day for which notice of motion was given to fix another day for redemption. H. In a foreclosure action the fact that a receiver appointed by the court has received rents since the certificate under the order nisi, is no bar to an immediate order of foreclosure absolute on default of payment pursuant to the certificate. Hoare v. Stephens, 32 Ch. D. 194 ; 55 L. J., Ch. 511 ; 54 L. T. 230 ; 34 W. E. 410— V.-C. B. The receiver, appointed before judgment in a foreclosure action, received rents both before and after the day fixed for payment of the mortgage money : — Held, that a further account must be taken, and a further period of one month from the date of the new certificate given to the mortgagor to redeem. Peat v. Nioholson, 54 L. T. 569 ; 34 W. E. 451— Kay, J. At the date limited for redemption in a fore- closure action, money was in court and in the hands of a receiver paid under a mining lease since the issue of the chief clerk's certificate. The foreclosure judgment gave liberty to any person redeeming, or, in the event of foreclosure, to the plaintiffs, to apply for payment to them- selves of funds in court or in the hands of the receiver : — Held, that the plaintiffs were entitled to an immediate order for foreclosure absolute, and for payment of the money in court and in the hands of the receiver without any further account. Jemner-Fust v. Needliam (32 Ch. D. 582) distinguished. Coleman v. LlewelUn, 34 Ch. D. 143 ; 56 L. J., Ch. 1 ; 55 L. T. 647 ; 35 W. E. 82— C. A. Where a receiver was appointed after a judg- ment for foreclosure, and there was a balance in his hands representing the corpus of the mort- gaged property, the plaintiff was held to be entitled to have the foreclosure judgment made absolute. Welch ii. National Cycle Worhs Com- pamy, 55 L. T. 673 ; 35 W. E. 137— Chitty, J. The receiver and manager, appointed before judgrrient in a foreclosure action, received moneys that represented the gross takings in the business of the mortgaged property, which was a leasehold public-house. The moneys were received from day to day, partly before and partly after the date fixed for redemption. The court made a final order for foreclosure, and directed that the receiver and manager should pass forthwith his final account, and be dis- charged, his recognisance and bond to be vacated. 1275 MOETGAGE — Remedies for Non-fayment of Mortgage-money. 1276 The court also directed that the balance of the moneys on the receiver's account should be paid into court, and gave liberty to any of the parties to apply in chambers as to such balance, and also as to the costs of the present application, such costs being reserved. Holt v. Beagle, 55 L. T. 592— Kay, J. Receipt of Rent by Mortgagees — Order.] Upon a motion by mortgagees for judgment for foreclosure absolute, and possession of the pro- perty, to Tvhich the mortgagor did not appear, and the mortgagees had received rents since the date of the certificate, the court enlarged the time for redemption by one month, and directed the plaintiffs to file and deliver to the registrar an affidavit showing what would be the balance due to them up to that date for principal, interest, and costs ; and ordered that, if the amount should not be paid, the defendant should be absolutely foreclosed, and the plaintiffs should have possession of the property. Lacon v. Tyrrell, 56 L. T. 483— Stirling, J. Opening Foreclosure.] — In an action by executors of a mortgagee against the mortgagor and a puisne mortgagee an order nisi for fore- closure was made, giving successive periods of redemption. After the time fixed for redemp- tion, and before final judgment was obtained against the puisne mortgagee, and before the expiration of the time allowed to the mortgagor, the plaintiffs received a sum of money for rent. A further account had been taken against the mortgagor, and a further day fixed for redemp- tion by him : — Held, that it was irregular to fix a further time for the mortgagor to redeem until the puisne mortgagee had been finally ioreclosed ; and that the receipt of moneys for rent after the time fixed for the puisne mort- gagee to redeem and before final judgment obtained against him did not open the fore- closure against him. The order was to foreclose the puisne mortgagee absolutely, and to take a further account against the mortgagor. Webster v. Patteson, 25 Ch. D. 626 ; 53 L. J., Ch. 621 ; 50 L. T. 252 ; 32 W. E. 581— Kay, J. V. Costs. County Court Scale.] — In an action to fore- close a mortgage for 65Z. 18«. Wd., where both plaintiff and defendant lived at the same place : — Held, that the plaintiff was entitled only to such costs as he would have obtained in the county court. Simons v. McAdam (6 L. E., Eq. 324) foUowed. Crazier v. Bowsett. 31 Gh. D. 67 ; 55 L. J., Ch. 210 ; 58 L. T. 592 ; 34 W. E. 267— y.-C. B. Mortgage of Two Estates by same Mortgagor. ] — When a mortgagee brings an action to fore- close two mortgages of two distinct estates, but which mortgages are by force of the statute or otherwise not liable to be consolidated, the costs of the action are not to be charged against each estate, but must be apportioned rateably between the two estates. Clapham v. Andrews (27 Ch. D. 679) overruled. Be Caux'^. Shipper, 31 Ch. D. 635 ; 54 L. T. 481 ; 34 W. R. 402— C. A. Since the commencement of the Conveyancing Act, 1881, separate mortgages were made of distinct estates by the same mortgagor. The mortgagee having brought a foreclosure action : — Held, that the mortgagor could not redeem either estate without paying all the costs of the action. Clapliam v. Andrews, 27 Ch. D. 679 ; 53 L. J., Ch. 792 ; 51 L. T. 86 ; 33 W. E. 395— Pearson, J. Disclaimer by cue Defendant — Notice of Motion — Costs of Defendant's Appearance.] — A first mortgagee brought an action for foreclosure against the mortgagor and a number of subse- quent incumbrancers of whom G. was one. 6. put in a defence disclaiming all interest and consenting to be dismissed without costs. It was admitted that G. had had an interest, and was properly made a party to the action. The plaintiff, instead of obtaining the common order to dismiss, served G. vrith notice of motion for judgment for a foreclosure decree against him. G. appeared at the hearing : — Held, that it was unnecessary for him to appear, and he was not entitled to his costs. Leivin v. Jones, 53 L. J., Ch. 1011 ; 51 L. T. 59— North, J. Of Mortgagee — By whom Payable.] — Semble, in a foreclosure action the costs of the mort- gagee, as between solicitor and client, are payable by the mortgagor. Griffith, Jones 4' Co. In re, 53 L. J., Ch. 303 ; 50 L. T. 434 ; 32 W. E 360— C. A. Order for Personal Payment.] — In the order for personal payment the costs will be limited to such costs only as would have been incurred it the action had been brought for payment only of the debt. Farrer v. Lacy, 31 Ch. D. 42 ; 55 L. J., Ch. 149 ; 53 L. T. 515 ; 34 W. E. 22— C. A. Claim for Payment withdrawn.] — A mortgagee issued a writ asking for the usual order for foreclosure, and moved for the appoint- ment of a receiver, and on the motion being heard, a receiver was appointed. A statement of claim was delivered, but the mortgagor having become bankrupt, the plaintiff withdrew his claim for payment : — Held, that the plaintiff should have proceeded by originating summons. The court made the usual foreclosure order, but directed the taxing-master to allow such costs as the plaintiff would have been entitled to if he had proceeded by originating summons and no more. Barr v. Bardina, 58 L. T. 74 ; 36 W. E. 216— Kay, J. • Mortgagee in Possession — Accounts.]— On a motion for judgment in default of defence in a foreclosure action, a mortgagee asked for an order for an account to be taken, and for pay- ment, and the usual foreclosure judgment ; the mortgagee, however, being in possession, and having therefore to account on the footing of ■ wilful default, did not show what he might , have received but for his wilful default. The court therefore gave him the order for an account to be taken, and the usual foreclosure judgment, but made no order for payment. The defendant then said that the plaintiff had abandoned his claim for payment, and therefore ought to have proceeded by summons, and not by action, and was entitled under the foreclosure order to no more costs than if he had appHed by 1277 MORTGAGE — Bemedies for Non-payment of Mortgage-money, 1278 summons : — Held, that as the plaintifl had not abandoned his claim for personal payment, but had pressed it, he was entitled to his costs. The court refused to allow the case to go into the general paper for argument as to the question of costs. BrooMng v. Skewis, 58 L. T. 73 ; 36 W. R. 215— Kay, J. Of mortgagee — What allowed — Equitable Uortgage by Deposit.] — In an action to fore- close a mortgage by deposit of title-deeds, accompanied by a memorandum by which the mortgagor agreed to execute a legal mortgage of his estate and interest at the request of the mortgagee, the taxing-master disallowed the following charges in the mortgagee's bill of costs : — (1) Costs of an action in the Queen's Bench Division for recovery of the debt ; (2) Costs of correspondence with a surety who had given a promissory note for part of the debt ; (3) Costs of investigating the mortgagor's title ; (4) Costs of preparing a legal mortgage which the mortgagor refused to execute ; (5) Costs of correspondence with the mortgagor as to the legal mortgage : — Held, that heads (1) and (2) must be allowed, but that the taxing-master was right in disallowing (3), (4), and (5). But held, on appeal, that a mortgagee is entitled to be allowed in account the costs of'aU proceedings reasonably taken by him to enforce his rights imder the mortgage contract, including pro- ceedings to obtain the mortgage money or any part thereof, either from the mortgagor, or from a surety, or out of the estate, and that therefore heads (2), (4), and (5) must be allowed. That (1) would ordinarily be a proper charge, but in the present case it could not be allowed, as it was excluded by the special terms of the order directing taxation, and that (3) could not be allowed, as an investigation of the title was not necessary for the purpose of preparing the legal mortgage, but that the mortgagees must be allowed all expenses properly incurred with reference to the preparation of the legal mort- gage, which would include the expense of such inspection of the title-deeds as was necessary for preparing it. Ellison v. WrigM (8 Kuss. 458) preferred to Lewis v. John (9 Sim. 366). National Provincial Bank of England v. Games, 31 Ch. D. 582 ; 55 L. J., Ch. 576 ; 54 L. T. 696 ; 34 W. E. 600— C. A. Of Accounts asked for TTnreaBonahly.]— <%e Taylor v. Mostyn, ante, col. 1269. 2. IN OTHEE CASES. Action for Recovery of land— Special In- dorsement—Landlord and Tenant — Attornment Clause.] — A mortgage deed contained an attorn- ment clause by which the mortgagor became tenant at will to the mortgagee of the land mortgaged, at a rent identical with the interest secured by the deed. The interest being in arrear, the mortgagee gave notice to quit, and, failing to obtain possession, brought an action against the mortgagor for the recovery of the laud : — Held, that the action was one " for the recovery of land by a landlord against a tenant whose term has expired " within Ord. III. r. 6 (F), entitling the plaintiff to endorse the writ specially with a statement of his claim under that rule, and consequently to apply for final judgment under Ord. XIV. Baub-uz v. Lavington, 13 Q. B. D. 347 ; 53 L. J., Q. B. 283 ; .51 L. T. 206 ; 32 W. E. 772— D. A mortgage deed contained a clause by which, for the purpose of securing the punctual pay- ment of the interest, the mortgagor attorned tenant to the mortgagee, and the mortgagee had a power of re-entry for default in payment. Default having been made, the mortgagee commenced an action for the recovery of the premises, and applied for judgment under Ord. XIV. : — Held, that the mortgagor was a tenant whose term had expired or had been duly determined by notice to quit within the meaning of Ord. III. r. 6 (F.), and the plaintiff was entitled to judgment. Dauiitz v. La/oington, (13 Q. B. D. 347) approved and followed. E[aU V. Comfort, 18 Q. B. D. 11 ; 56 L. J., Q. B. 185; 55 L. T. 550 : 35 W. R. 48— D. Concurrent Actions in Chancery and Common Law Divisions — Motion for Final Judgment — Costs.] — A mortgagee by deed, of lands, after commencing an action in the Chancery division for an account of what was due on the mort- gage, and for sale of the mortgaged premises, brought a personal action in a Common Law division on the covenant in the mortgage deed for payment of the principal debt and interest, and moved for final judgment. The defendant had not moved to stay the second action : — Held, that the plaintiffs were entitled to judgment, but without costs of the action or motion. Bourhe v. Bonoghue, 20 L. R., Ir. 324 — Ex. D. Action on Covenant— Assignment of Equity of Redemption — Right of Mortgagor to Reconvey- ance.] — A. mortgaged a house to B. for 12,O0OZ., and covenanted to pay the principal and in- terest. He afterwards sold his equity of redemp- tion to C, who covenanted to pay the 12,000?. and to indemnify A. in respect thereof. C. then made a further charge on the mortgaged pro- perty for 8,O0OZ. in favour of B., and covenanted that the property should not be redeemable ex- cept on payment of both the 12,000Z. and the 8,0002. C. having become insolvent, B. brought an action against A. on his covenant for the 12,000?.: — Held, that B. was only entitled to recover upon the terms of reconveying the mortgaged property to A. Mnnaird v. Trollope, 89 Ch. D. 636 ; 57 L. J., Ch. 905 ; 59 L. T. 433 ; 37 W. E. 234— Stirling, J. To Pay Principal and Interest — Judg- ment—Merger.] — A mortgage deed contained a covenant by the mortgagor for payment of the principal sum on the expiration of six months next after a specified day, together with interest thereon at 5 per cent, per annum for the six months. And there was a further covenant by the mortgagor that, if the principal sum, or any part thereof, should remain unpaid after the expiration of the six months, the mortgagor would, so long as the same sum or any part thereof should remain unpaid, pay to the mort- gagee interest for the principal sum, or for so much thereof as should for the time being remain unpaid, at 5 per.cent. per annum. After the ex- piration of the sis months, the mortgagee recovered judgment against the mortgagor on the covenant for the principal sum and interest in arrear :— Held, that the covenant being merged 1279 MOBTQAGIS,— Redemption. 1280 in the judgment, the mortgagee was, as from the date of the judgment, entitled only to interest on the judgment debt at the rate of 4 per cent., and was not entitled under the covenant to interest at the rate of 5 per cent, on the princi- pal sum. Pop^e T. Sylvester (22 Ch. D. 98) distinguished. Fewings, Ex parte, Sneyd, In re, 25 Ch. D. 338 ; 53 L. J., Ch. 545 ; 50 L. T. 109 ; 35 W. E. 352— C. A. Claim against Besiduary legatees — Delay in following Assets — Acquiescence.] — The right of mortgagees of real estate whose security proves insufficient, to come against the residuary legatees of the mortgagor, amongst whom his personal estate has been distributed, is a purely equitable right, and the court will not enforce it if there are circumstances which would make it inequitable to do so. Blalte v. Gale, 32 Ch. D. 571 ; 55 L. J., Ch. 559 ; 55 L. T. 234 ; 34 W. E. 555— C. A. Solicitor-mortgagee — Profit Costs.] — Where one of a body of mortgagees is a solicitor and acts as such in enforcing the mortgage security, he is entitled to charge profit costs against the mortgagor, whether the mortgagees are trustees or not. If in such a case the mortgagor, in applying for an order to tax the bill of the soli- citor-mortgagee, desires to raise the objection to profit costs, he should state his objection in his petition for taxation. Donaldson, In re, 27 Ch. D. 644; 54 L. J., Ch. 151; 51 L. T. 622— V.-C. B. Action of Debt for Costs and Expenses.] — Costs and expenses properly incurred by a mortgagee in relation to the mortgaged property, and which the mortgagor will be compelled to pay as a condition of being allowed to redeem the property, do not constitute a debt in respect of which an action can be maintained by the mort- gagee against the mortgagor. Fewings, Ex parte, Sneyd, In re, 25 Ch. D. 338 ; 53 L. J., Ch. 545 ; 50 L. T. 109 ; 32 W. E. 352— C. A. VIII. EEDEMPTION. Bight to Bedeem — ^Tenant for Years.] — A tenant for years under an agreement for lease made subsequently to a mortgage on the demised property, and by which the mortgagee is not bound, is entitled to redeem the mortgage. The principle is the same whether the tenancy is beneficial or otherwise. Tarn v. Turner, 39 Ch. D. 456 ; 57 L. J., Ch. 1085 ; 59 L. T. 742 ; 37 W. E. 276— C. A. Mortgage of Eealty and Personalty — Bedemption by Executor.] — Eeal and personal estate were mortgaged together. The mortgagor died leaving a will of personalty, but intestate as to real estate. It was not known who was the heir-at-law, and the mortgagee entered into possession. The executrix of the mortgagor claimed to redeem the whole of the mortgaged property, which claim was resisted by the mort- gagee, who insisted that her only right was to redeem the mortgaged personalty on payment of a proportionate part of the mortgage debt. The executrix brought an action for redemption, and the court made a decree for the usual accounts as against a mortgagee in possession, directing that on payment of what was found due the mortgagee should convey and assign the mortgaged properties, real and personal, to the plaintiff, subject to such equity of redemption as might be subsisting therein in any other person or persons. The defendant appealed : — Held, that this decree was right, for that the owner of the equity of redemption of one of two estates comprised in the same mortgage cannot insist on redeeming that estate separately, and cannot be compelled to redeem it separately, his right being to redeem the whole, subject to the equities of the other persons interested ; that although the heir-at-law, if known, ought to have been a party, the court would not delay making a decree until he was ascertained and made a party, and, that although a mortgagee in possession who voluntarily transfers his security is liable to account for the subsequent rents, he is subject to no such continuing liability when he transfers by the direction of the court in a redemption suit. Hall v. Seward, ?ii Ch. D. 430 ; 55 L. J., Ch. 604 ; 54 L. T. 810 ; 34 W. E. 571— C. A. Bankruptcy of Mortgagor — Fnrchase by Trustee — Bight of Second Mortgagee,] — A trustee in bankruptcy does not by purchasing from the first mortgagee of the bankrupt extin- guish the first mortgage and make the second mortgagee the first incumbrancer on the estate. But such a purchase does not extinguish the right of the second mortgagee to redeem. Bell V. Sunderland Building Society, 24 Ch. D. 618 ; 53 L. J., Ch. 509 ; 49 L. T. 555— V.-C. B. Bight of Mortgagor to call for Assignment to a Third Person.] — A tenant for life of mort- gaged premises who has failed to keep down the interest, and who has obtained the usual order permitting him to redeem the mortgage, is not of right entitled under h. 15 of the Conveyancing and Law of Property Act, 1881, to require the mortgagee to transfer the mortgage debt and premises to a third person. Alderson v. Elgey, 26 Ch. D. 567 ; 50 L. T. 505 ; 32 W. E. 632— Chitty, J. Accounts — Order for Preliminary Accounts.] — The plaintifE, after issuing the writ in a re- demption action, took out a summons for an account under Ord. XV. r. 1 : — Held, that the order under the summons must be limited to preliminary accounts, and that the usual terms of a final judgment for redemption ought not to be added without the plaintiff's consent. Clover V. Wilts and Western Benefit Building Society, 53 L. J., Ch. 622 ; 50 L. T. 382 ; 32 W. R. 895— V.-C. B. Mortgagee in Possession overpaid — Annual Bests — Costs.] — In a redemption action against mortgagees in possession the plaintiffs, who claimed to represent the original mortgagor, alleged that the defendants had been overpaid. The defendants delivered a defence in which they denied the title of the plaintiffs to redeem ; pleaded the Statute of Limitations ; and as- serted that a large amount was still due to them. At the trial the plaintiffs' title to re- deem was not disputed, and the defence of the statute was overruled. The judgment directed the taking of the ordinary accounts in a re- 1281 MORTGAGE— Paj/meni Off. 1282 demption action against mortgagees in posses- sion, including an account of what was due to the defendants for principal and interest, and their taxed costs of the action ; and that, on payment by the plaintifEs within six months after the certificate of the balance (if any) which should be found due to the defendants, the defendants should re-convey the mortgaged property to the plaintifEs, and that, in default of payment, the action should be dismissed with costs. But, in case it should appear on taking the accounts that the defendants had been over- paid, the further consideration of the action was to be adjourned. The chief clerk found by his certificate that the mortgagees went into possession in May, 1857 ; that the mortgage debt was fully repaid in November, 1866 ; and that at the date of the certificate there was a balance of 618Z. due from the defendants : — Held, that the account must be taken against the defendants with annual rests from the date at which the mortgage debt was fully paid, and that the defendants must pay the costs of the action. Wilson v. 2Ietcalfe (1 Kuss. 530) fol- lowed as to the annual rests, but distinguished as to the costs. AshiooHh v. Zord, 36 Ch, D. 545 ; 57 L. J., Ch. 230 ; 58 L. T. 18 ; 36 W. E. 446— North, J. mortgagees in Fossession — Account of Sents and Profits — Beceipts hy Agent — liberty to Surcharge.] — The defendants had by the judg- ment in an action been held to be mortgagees in possession of certain mortgaged estates, and the usual accounts and inquiries as against mortgagees in possession were directed. The defendants brought in an account purporting to show their receipts in respect of the rents and profits of the mortgaged estates, but which in fact only showed certain lump sums received by them from one J. H. Blood, then deceased, their agent. On motion by the plaintiff for a further and better account : — Held, that the defendants were bound to render the further account, for that the receipts of Blood were as between the plaintiff and the defendants the receipts of the defendants ; the defendants were bound to de- liver an account showing not only what they had received from Blood, but what he had re- ceived from the tenants, and that it was a ques- tion not of technicality but of substance, for vrithout the knowledge derived from such an account the plaintiff would be unable to proceed on the inquiry as to wilful default, which was a matter of surcharge, and that the death of the defendants' agent could not excuse the defen- dants from this liability. Noijes v. Polloclt, 30 Ch. D. 336 ; 55 L. J., Ch. 54 ; 53 L. T. 430 ; 33 W. K. 787— C. A. Fiduciary Relation — Bate of Interest] — The plaintiff had mortgaged her life interest in cer- tain leasehold property to various persons. In the year 1880, the defendant, who was then acting as her solicitor, in order to release her from embarrassment, bought up several of the incumbrances with his own money, and took a transfer of them to himself : — Held, in an action for redemption brought by the plaintiff against the defendant, that the defendant must be al- lowed interest at the rate of five per cent, on the moneys he had actually advanced. Macleod v. Jones, 53 L. J., Ch. 534 ; 50 L. T. 358 ; 32 W. E. 660— Pearson, J. Two Properties — Power of Consolidation.] — A brewery company were first mortgagees for l,0OOZ., and the plaintiff was third mortgagee of a public-house, A. The company afterwards took a mortgage of a public-house, B. ; A. and B. both belonging to the same mortgagor. The lease of A. was nearly out, and by arrange- ment between all parties the company advanced 1,000Z. for a new lease which was granted to the mortgagor, and was then mortgaged by him, first to the brewery company to secure 2,000Z. and advances, and subject thereto to the plain- tiff. By a memorandum given at the same time the plaintiff declared that the company was to have priority for their 2,O0OZ. and advances, not to exceed in the whole 2,300Z. The brewery company afterwards transferred both mortgages to the defendant. The plaintiff claimed to re- deem A., to which the defendant objected unless the plaintiff also redeemed B. : — Held, that; though the new mortgage of A. to the plaintiff was in date subsequent to the mortgage of B., the intention of the parties was merely to give priority to the company for their 2,300^., and not to give the company a right to consolidate the mortgage on A. and the mortgage on B. ; and as the whole was equitable, the company could not be held to have obtained any such right ; nor could their assignee be in any better posi- tion. Bird V. Wenn, 33 Ch. D. 215 ; 55 L. J., Ch. 722 ; 54 L. T. 933 ; 34 W. E. 652— Stir- ling, J. Action for Bedemptiou and Toreclosure — Form of Judgment.] — See Sallett v. Furze, ante, col. 1270. IX. PAYMENT OFF. Interest in lieu of Notice — Payment out of Fund in Court — Delay in Completion of Order.] — One of the beneficiaries under a will mort- gaged her interest in the testator's estate. She gave the mortgagees six months' notice to pay off the mortgage on the 1st of July, 1885, and on the 20th of May, 1885, an order was made in an action to administer the estate, on the application of the beneficiaries and in the presence of the mortgagees, which directed (inter alia) payment to the mortgagees, out of funds in court standing to the credit of the mortgagor, of the mortgage debt, with interest up to the 1st of July, 1885. Owing to delay in the completion of the order the payment could not be made on the 1st of July, and on the 2nd of July the mortgagees took out a summons, claiming six months' additional interest in lieu of a fresh six months' notice to pay off the mortgage. On the 20th of July the order was completed, and on the 21st of July the mort- gagees took the sum mentioned in the order out of court : — Held, that the mortgagees were only entitled to additional interest from the 1st to the 21st of July, on the ground that, by accept- ing the order, they assented to payment out of the fund in court subject to all the contingencies to which the completion of the order might be subject. 3foss, In re, Levy v. Sewill, 31 Ch. D. 90 ; 55 L. J., Ch. 87 ; 54 L. T. 49 ; 34 W. K. 59 — Pearson, J. Bights of one Mortgagor against Mortgagee on Payment of Money to other Mortgagor.] — T T 1283 MO'RTGA.GIE— Payment Of. 1284 A married woman having a charge on settled' estates for her jointure, joined with her husband in mortgaging them and anotlier estate of which he was absolute owner. Afterwards the hus- band sold the unsettled estate, the mortgagees joining, and the purchase-money was paid partly in reduction of the mortgage debt and partly to the husband. The wife did not join in the con- veyance, but consented to tlie transaction : — Held, that whatever equity the wife might have against her husband or the estate which had been sold, she had no equity to charge the mort- gagees with the sum paid to her husband. Noycs V. JPollorJi, 32 Ch. D. 53 ; 55 L. J., Ch. 513 ; 54 L. T. 473 ; 34 W. R. 383— C. A. Authority of Agent to receive Mortgage Money.] — G. and H. were mortgagees for 1,000Z. on property of S. Their solicitors, D. & P., who had the deeds in their custody, applied to the defendant, who was also a client of theirs, saying that they believed he had 1,OOOL to invest on mortgage, and that G. and H. wanted 1,000?. on a transfer of S.'s mortgage. The defendant in- spected the property, and being satisfied, he, on the 19th of June, 1878, sent the 1,000Z. to D. & P., who gave him a receipt for it. In July D. & P. fraudulently induced G. and H. to execute a deed of transfer to the defendant with a receipt indorsed, which deed they stated to G. and H. to be a deed of reconveyance to S. on his paying off the mortgage. D. & P. shortly afterwards handed this deed with the title-deeds to the; defendant, and went on paying him interest as if they had received it from S., who was in fact paying his interest to the agents of G. and H. ; G. and H. made no inquiry as to the mortgage, and this went on till 1883, when D. & P. became bankrupts, and the 1,OOOZ. received from the defendant, which had never been handed over to G. and H., was lost. G. and H. then brought their action against the defendant asserting a right against the property in the nature of an unpaid vendor's lien : — Held, that as the plain- tiffs by the deed of transfer and receipt which they handed to D. & P. enabled them to repre- sent to the defendant that the 1,0002. which he had previously handed to D. & P. had come to the hands of the plaintiffs, they had raised a counter equity which prevented their claiming a vendor's lien, though this would not have been the case if (D. & P. having no authority to receive money for the plaintiffs) the defendant had paid the IjOOOZ. to D. & P. at the time when the deeds were delivered to him, since he would then have known that the plaintiffs had not received the money. Swinbanhs, Ex paHe (11 Ch. D. 525), distinguished. Gordon v. James. 30 Ch. D. 249 ; 63 L. T. 641 ; 34 W. R. 217— C. A. Quffire, per Cotton, L:J., whether D. & P., as- suming them to have authority to receive mort- gage money on behalf of the plaintiffs, could be taken ever to have, in fact, received this 1,000L on their behalf. Ih. Transfer by Three Persons to secure loan — Authority to Sell — Transfer to Nominees of Customer.] — G., a stockbroker, who was one of three trustees and acted as broker to the trust, proposed to his co-trustees to sell B. stock belonging to the trust and rc-invest in N. B. stock. The three trustees then, on the 27th of January, 1882, executed a transfer of the B. stock for a nominal consideration to two persons who were officers of a bank of which G. was a customer. G. gave the transfer to the bank as security for a loan by them to him, and the transfer was registered. G., in February, 1882, paid off the loan, and on the 15th of February the bank transferred the stock to pur- chasers from G., and, without giving any notice to G.'s co-trustees, allowed him to receive the purchase-money. He invested it in N. E. stock in his own name. In 1883 he sold the N. E. stock and misappropriated the proceeds. Shortly after the sale of the B. stock G. had given an account to his co-trustees showing the sale of B. stock and a re-investment in N. E. stock, and in 1884 he rendered another account in which he represented the N. E. stock as still forming part of the trust funds. In 1885 he absconded. The co-trustees remembered hardly anything about the transaction, but admitted the 'genuineness of their signatures to the deed of transfer : — Held, that the bank had occasioned the loss to the trust estate by allowing the purchase-money to come to the hands of G., who had no authority to receive it, and whom they had no sufficient reason for believing to have authority to receive it, and that the bank must therefore make it good at the suit of the co-trustees, although the co-trustees had been negligent in not seeing that the N. E. stock was registered in the joint names of the trustees. Magnus v. Queensland Jfational Banli, 37 Ch. D. 46K ; 57 L. J., Ch. 413 ; 58 L. T. 248 ; 36 W. R. 577— C. A. Affirming 52 J. P. 246— Kay, J. Set-off— Eight to retain Surplus Moneys to discharge Unsecured Debt.] — G. died insolvent, having mortgaged an estate for his own life to secure an annuity granted by himself, payable during his own life. He had also mortgaged a policy on his own life to the same mortgagees. After the death of G. the mortgagees received in respect of the policy a sum more than sufficient to satisfy the amount secured on the policy : — Held, that they had no right to set off the balance against the executor in respect of arrears of the annuity. Greg son, In re, Christison v. Jiolam, 36 Oh. D. 223 ; 57 L. J., Ch. 221 ; 57 L. T. 250 ; 35 W. E. 803— North, J. Mortgage by Married Woman — Sestraint on Anticipation — Marshalling.] — C, a widow, was entitled to the income of one-third of a fund in court for her life for her separate use without power of anticipation, and was also entitled to the income of the remaining two-thirds of the fund for her life, but subject to certain deduc- tions. She mortgaged all her interest in the fund, and some policies of assurance on her life to F., and an Order was made for payment of the income of the mortgaged property to him. C. then married M. ; and after her marriage she charged all her interest in the fund in favour of P. After this T. obtained a judgment against her, and the appointment of a receiver of her separate estate. The income received by P. was more than sufficient for payment of the interest on his mortgage and the premiums on the policies, and he did not desire to reduce his principal : — Held, that as between F. and the subsequent incumbrancers of the fund, there ought to be a marshalling of securities, and that F. ought to pay the interest on his mortgage and the premiums on the policies out of the income of the one-third with respect to which 1285 NATIONAL DEBT— NE EXEAT EEGNO. 1286 the restraint on anticipation existed, so as to leave the income of the remaining two-thirds to satisfy the subsequent incumbrances. Lodfr's Trusts, In re, 56 L. J., Ch. 230 ; 55 L. T. 5S2 ; 35 W. E. 58— North, J. MORTMAIN. See CHARITY. MOTION. See PRACTICE. MUNICIPAL CORPORA- TION. See CORPORATION. MURDER. See CRIMINAL LAW. MUSIC. See COPYRIGHT. NAME. Trade Name.] — See Trade. Clause in Wills.] — See Will. NATIONAL DEBT. Petition for Ee-transfer of Stock — Res Judi- cata — Fresh Evidence,] — ^The jurisdiction given to the court by s. 55 of the National Debt Act, 1870, to decide upon petition as to the validity of a claim for the re-transfer of stoclc, which has been transferred to the National Debt Commis- sioners under the provisions of s. 51, is to be exercised in the mode in which the ordinary juris- diction of the court is exercised. Therefore, if a petition for the re-transfer of stoclc is heard on the merits, and is dismissed on the ground tliat the petitioner has failed to make out his title, he cannot on the subsequent discovery of fresli evidence in support of his title present a fresh petition for the same object, at any rate without the leave of the court previously obtained. House, Ex parte, Jfay, In re, 28 Ch. D. 516 ; 54 L. J., Ch. 338 ; 52 L. T. 78 ; 33 W. R. 917—0. A. NATURALIZATION. See INTERNATIONAL LAW. NAVIGATION. Of Ships.] — See Shipping (Collision). On Inland Waters.] — See Watek, III. NAVY. See ARMY AND NAVY. NECESSARIES. In Shipping Cases.] — See Shipping. For Infants.] — See Infant. NE EXEAT REGNO. Debt payable in Futuro — Default by Trustee — Debtors Act, 1869.] — An order was made that a trustee should within seven days after service of the order pay t6 his cestui que trust, the plain- tiff, a sum found due to him by the chief clerk's certificate. The plaintiff could not find the trustee so as to serve the order, and applied for a writ of ne exeat. on the ground that the trustee T T 2 1287 NEGLIGENCE— GewentZ Principles. 1288 was about to go out of the jurisdiotion : — Held, that the case did not fall within the third excep- tion in s. 4 of the Debtors Act, 1869, the trustee not being in default, as the order only directed payment after service and had not been served, and that as the debt was not now due and pay- able a writ of ne exeat could not be granted. Colverson v. Blnomfield, 29 Ch. D. 341 ; 54 L. J., Ch. 817 ; 52 L. T. 478 ; 33 W. E. 889— C. A. NEGLIGENCE. I. General Peinciples. 1. Identification with Wrongdoer, 1287. 2. Contributory Negligence, 1288. II. In Paeticulak Cases. 1. Navigation of Steamships, 1291. 2. Railway Companies, 1292. 3. Innheepers, 129B. 4. Dangerous Premises or Cliattels, 1294. 5. lAaiility for Acts of Stranger, 1295. 6. lAaMlity of Master for Acts of Ser- vant, 1296. 7. Licensees, 1298. 8. Contractor and Employer, 1298. 9. PuUic Bodies, 1299. 10. In other Cases, 1300. III. Actions for Injueies. 1. Lord CamphelVs Act, 1301. 2. In other Cases, 1303. I. GENERAL PRINCIPLES. 1. Identification with Weongdoeb. Joint Wrongful Act — Claim by Person not responsible for Negligence.] — Where a person receives injuries in consequence of the joint act of two wrongdoers, it is no defence for one of the wrongdoers to say that the injuries were not received solely through his wrongful act. Mathews v. London Street Tramways Company, 58 L. J., Q. B. 12 ; 60 L. T. 47 ; 52 J. P. 774 — D. M. was a passenger on an omnibus which col- lided with a tramoar of the defendants : — Held, that if there was negligence on the part of the tramcar driver which caused the accident, it is no answer to say that there was negligence on the part of the omnibus driver. H. A passenger on board the " Bushire " and one of the crew lost their lives by drowning in con- sequence of a collision with the " Bernina." Both vessels were to blame, but neither of the deceased had anything to do with the negligent navigation of the " Bushire " : — Held, that their representatives could maintain actions under Lord Campbell's Act, against the owners of the " Bernina," and could recover the whole of the damages : s. 25, sub-s. 9, of the Judicature Act, 1873, not being applicable to such actions. Thorogood v. Sryan (8 C. B. 115), and Arm- strong V. Lancashire and Yorhshire Railway (10 ij. E., Ex. 47), overruled. Mills v. Arm- strong, The Bernina, 13 App. Cas. 1 ; 57 L. J., P. 65 ; 58 L. T. 423 ; 36 "W. R. 870 ; 52 J. P. 212 ; 6 Asp. M. C. 257— H. L. (E.). In an action under Lord Campbell's Act for loss of life occasioned by a collision: — Held, first, that s. 512 of the Merchant Shipping Act, 1854, does not apply to cases of loss of life caused by a foreign ship. Secondly, that the breach of the rules for preventing collisions, to which the deceased was privy, and for which the court would be bound to hold the ship to blame under the 17th section of the Merchant Shipping Act, 1873, constitutes legal contribu- tory negligence on the part of the deceased, even where there is no reason to believe that such breach of the regulation actually contri- buted to the accident. Thirdly, that contri- butory negligence on the part of the deceased did not debar the plaintiff from recovering any damages ; but that, according to the rule obtain- ing in cases of collision, the plaintiff was entitled to recover a moiety of the damage she had sus- tained. The Vera Cruz, 9 P. D. 88 ; 53 L. J., P. 83 ; 51 L. T. 104 ; 32 W. E. 783 ; 5 Asp. M. C. 254— Butt, J. See S. C. in H. L., post, col. 1301. 2. Contbibutoey Negligence. When Case should be left to Jury.] — ^To justify leaving a case to the jury, notwithstand- ing the voluntary act of the injured person contributing to the injury complained of, the circumstances must be such as either — 1, to make the question, whether that act was neg- ligent (either per se or having regard to the conduct of the defendants inducing or affecting it) a question of fact ; or, 2, to render reasonable an inference of fact that the defendants, by using due care, could have obviated the con- sequence of the plaintiff's negligence. Coyle v. Great Northern Railway, infra. In an action for damages for negligence it is not sufficient to entitle the plaintiff to have his case submitted to a jury that he has proved some negligence on the part of the defendants, if it also appears that the plaintiff was guilty of such contributory negligence that no reasonable jury could find a verdict in his favour. Wright v. Midland Railway, 51 L. T. 539— D. In an action of negligence if the|plaintiff gives evidence of negligence on the part of the defen- dant, and also gives evidence which may or may not be considered as amounting to contributory negligence on his own part, the case ought to be left to the jury. Brown v. Great Western Railway, 52 L. T. 622— D. Where in an action for damages for personal injuries it appears from the plaintiff's own evidence that theinjuries sustained were partially attributable to his omission to take ordinary pre- cautions against a danger created by the defen- dant's breach of duty, there is no case to go to the jury. Sayer v. Hatton, 1 C. & E. 492— Huddleston, B. Connexion with Accident — Onus of Proof.] — A railway line crossed a public foot- path on the level, the approaches to the crossing being guarded by hand gates. A watchman who was employed by the railway company to take charge of the gates and crossing during the day was withdrawn at night. The dead body of a man was found on the line near the level crossing at night, the man having been killed by a train which carried the usual head lights but did not 1289 NEGLIGENCE— GcneraZ Principles. 1290 whistle or otherwise give warning of its approach. No evidence was given of the circumstances under which the deceased got on to the line. An action on the ground of negligence having been brought by the administratrix of the deceased, the jury found a verdict for the plaintiff ; — Held, that even assuming (but without deciding) that there was evidence of negligence on the part of the company, yet there was no evidence to con- nect such negligence with the accident ; that there was therefore no case to go to the jury, and that the railway company were not liable. Observations as to the onus of proof with regard to contributory negligence. Wahelhi v. London and South Western Railway, 12 App. Gas. 41 ; 56 L. J., Q. B. 229 ; 55 L. T. 709 ; 35 W. K. 141 ; 51 J. P. 404— H. L. (B.) Particular Instances.] — C. was, at the time of the accident which caused his death, and had been for some three weelcs pre- viously, employed by contractors in erecting a signal-bos near a station on the defendants' line of railway, and it was necessary for C. and the other men employed in the work to cross the line to procure their tools, which were kept in a box at the other side of the railway. When C. was re-crossing on the morning of the accident, carriages were being shunted, as was done every morning at that hour, to make up a train, and some of these passed over C, who was killed. In an action by C.'s administratrix under Lord Campbell's Act against the railway company, it appeared from the evidence of the plaintiff's own witnesses, that the view from the tool-box, at which C. was standing, to the point from which the carriages began to retrograde was unobstructed ; that they were visible during the whole of the shunting to any person at the jtool-box ; that they were retrograding in the direction of C. when he started to cross the line, and that he must have seen them moving had he looked towards them, and that there was nothing imusual in what took place that morning in the mode of shunting : — Held, that the judge at the trial ought to have directed a verdict for the defendants, as the undisputed facts showed affirmatively that C. in crossing the line acted negligently, and that his negligence, if not the sole, was at least a contributory cause of the accident. Coyle v. Great Northern Railway, 20 L. K., Jr. 409— Ex. D. An action was brought under Lord Campbell's Act by a widow for the loss of her husband. The deceased took his ticket at the defendants' station, at 9.30 p.m., intending to travel by a train leaving at 9.50 p.m., from the up platform, which was. opposite to that on which the booking office was situated. There was no sufficient accommodation for passengers waiting, except on the booking office side, where there was a waiting room. The deceased remained there until the train was heard approaching. On hearing the train approaching the deceased attempted to reach the up platform by a level crossing, at each end of which lamps were fixed. There was no bridge or subway across the line. The train was about twenty yards from the cross- ng when the deceased attempted to cross. He was struck by the engine of the train and killed. At the approach of the train it was usual for a porter to stand at the crossing and warn pas- sengers. But on the night in question there was no porter at the crossing, and no notice was given of the approach of the train ; no whistle sounded, and no bell was rung. The judge at the trial left the question of the defendants' negligence to the jury, who found a verdict for the plaintiff : — Held, that the judge ought to have withdrawn the case from the jury, on the ground that the case upon the plaintiff's evidence disclosed such a want of care on the part of the deceased, as shewed that he had so far conduced by his negli- gence to the accident as to disentitle the plaintiff to recover. Wright v. Midland Railway, 51 L. T. 539— D. The plaintiff was engaged in the loading of a cargo on board the defendant's steamer. His duty was to direct the management of the crane by which bales were slung into the hold, and to call out to the men Avorking the crane ' ' high enough " when the bale was hoisted sufficiently high to be lowered into the hold. For this purpose his proper place was to stand in a particular part of the deck ; but at the time of the accident there was a quantity of coal on this spot, which pre- vented the plaintiff from standing there, and he accordingly stood under a plank, called a flap, working on hinges, and necessarily raised when cargo is being put into the hold, the flap being then secured by a rope passing through a block in the rigging and hooking on by an ordinary open hook to a ring in the flap. One of the bales was hoisted too high and struck the flap, causing the ring to slip out of the open hook, and th(j flap falling in horizontal position struck the plaintiff, who was severely injured. The plaintiff admitted that he knew that a short time pre- viously the flap had slipped from the hook in a similar manner and been broken. There was also evidence that at the time of the accident the plaintiff was standing on some boards and tarpaulin, which might have been removed, and that if he had been standing on the clear deck there would have been sufficient space between the deck and the flap, even when it fell into the horizontal position, to save him from con- tact with it. The judge of assize found, and it was in fact admitted, that the defendants were guilty of negligence in not having the flap properly secured, and in permitting the place where the plaintiff ought properly to have stood to be obstructed with coal. He also found that there was contributory negligence on the part of the plaintiff in standing on the boards and tarpaulin, and in not removing them ; and further, in not properly controlling the hoisting of the bale, as was his duty, and that he did not exercise reasonable care and caution, either as to his place or manner in which he stood, or the management of the hoisting of the bale. On a special case : — Held, that there was evidence of contributory negligence on the part of the plain- tiff, and that the action should be dismissed. 3I'JSvoy V. Waterford Steamship Company, 18 L. E., Ir. 159— Ex. D. Level Crossing — Accident caused by Plaintiffs own Negligence.]- The defendants' railway crossed a public footpath on the level. About halE-past four o'clock in the afternoon of the 29th of March, the plaintiff, a foot passenger, while crossing from the down side to the up side of the railway, was knocked down and injured at the crossing by a train of the defendants on the up line. Owing to the position of certain buildings which stood by the line it was im- possible for any one crossing from the down side 1291 NEGLIGENCE— Iw Pwrticula/r Cases. 1292 to see a train coming until he got within a step or two from the down line, but a person stand- ing on the down line or the six-foot had a clear and unmterrupted Tiew up and down the lire for several hundred yards. The plaintiff, who lived near and was well acquainted with the crossing, stated that before crossing he looked to the right along the down line, but he admitted that he did not look to the left along the up line, and that if he had looked ho must have seen the train coming. The engine-driver did not whistle. There was a servant of the defendants employed as a gate-keeper at the crossing, whose duty it 'was to open the carriage gates there when carriages could safely be admitted, and to close them at other times. He was standing at the time on the opposite side of the crossing talking to two boys, with a furled flag in his hand ; but he gave no warning to the plaintifO that a train was coming. The plaintiff having brought an action against the defendants to recover com- pensation for Ms injuries, was nonsuited on the above facts being proved at the trial : — Held, by Brett, M.E., and Bowen, L. J. (Baggallay, L. J., dissenting), that the nonsuit was right, as although there was evidence of negligence on the part of the defendants, yet according to the undisputed facts of the case the plaintiff had shown that the accident was solely caused by his omission to use the care which any reasonable man would have used. Dm-ey v. London and South Western Railway, 12 Q. B. D. 70 ; 53 L. J., Q. B. 58 ; 49 L. T. 739 ; 48 J. P. 279—0. A. Plaintiff, an intending passenger by the de- fendant's railway, having received his ticket, was obliged to cross the line by a level crossing in order to get from the booking-office to the platform from which his train would start. Whilst crossing he was knocked down and injured by a train which he was unable to see till it was about twenty yards from him, owing to a sharp curve on the line. The night was dark, and there was no one at the crossing to warn the plaintiff of the approaching train, which was a special train running through the station at a fast speed, and , not mentioned in the time- tables. The learned judge at the trial directed a nonsuit on the authority of Davey v. London and South-Western Railway (12 Q. B. D. 70) : — Held, th.at the case ought not to have been withdrawn from the jury, and that the nonsuit was wrong. Broion v. Great Western Railway , 52 L, T. 622— D. II. IN PARTICULAR GASES. 1. NAVIGATION OF STEAMSHIPS. Failure of Steam Steering Gear.] — The steam- ship B. while proceeding down the river Thames came into collision with a brig which was moored alongside a wharf. The cause of the collision was the failure of the steam steering gear on board the B. The same steering gear had failed in an exactly similar manner a few days before, as the E. was on her inward voyage. It was then disconnected, and the hand gear used on the way up the river. On the ship's arrival the machinery was taken to pieces and examined, but nothing was found wrong with it, nor was the cause of the failure ascertained : — Held, that having regard to what had happened on the inward voyage, to trust the control of the ship to the same steering gear in the crowded and intricate navigation of the Thames consti- tuted negligence. The European, 10 P. D. 99 ; 54 L. J.. P. 61 ; 52 L. T. 868 ; 33 W. E. 937 ; 5 Asp. M. 0. 417— Butt, J.' Identification with Wrongdoer.] — See supra. 2. Railway Compaxies. Locomotive Engine at Station — Noise of Steam — Duty to Screen.] — In an action against the defendants, a railway company, it appeared that the plaintiffs were leaving a station belonging to the defendants in a carriage, when the horse was frightened by the sight and sound of a locomotive engine at the station which was blowing off steam, and the carriage was upset and the plain- tiffs injured. It did not appear that the engine was defective, or that it was used in an improper manner, or that the approach to the station was inconvenient, but the jury found that the defen- dants were guilty of negligence in not screening the railway from the roadway leading to the station, and that such negligence had caused the accident : — Held, that the defendants were not liable, as there was no evidence of any obliga- tion on their part to screen the railway from the road. Siinltin v. London and JVorth Western Railway, 21 Q. B. D. 453 ; 59 L. T. 797 ; 53 J. P. 85— C. A. level Crossing — Foot-passenger — Evidence of Negligence.] — ^A few minutes after three o'clock p.m. in clear daylight, C, who was a resident in the locality, had occasion to traverse a level crossing on the line of the defendant railway company, close to the L. station. There was a large swing-gate on each side of the line at the crossing for heavy traffic, besides a wicket for foot-passengers. An express train, which usually travelled at the rate of about thirty miles an hour, was timed to pass this point at 2.30 p.m., but was about forty minutes late on the day in question, and another train was due at 3.15. The large gates were closed, but no attempt was made by the company's servants to prevent C. from crossing, or to warn him of impending danger. Just after getting on the line, 0. made an inquiry from a person who was standing on the platform of the station, and immediately afterwards another person on the platform shouted to 0. to "look out for the train." 0. was then on the " six-foot way," and the approaching express was about twelve yards dis- tant on the rails towards which he was walking. C. became confused, and, instead of going back, ran forward, and was killed. There was evidence that the express train usually whistled about a mile before reaching the station ; but a witness stated that, on this occasion, he heard it whist- ling while passing through the station. It was further proved that the line, in the du-eotion from which the train came, was visible for at least 200 yards, and according to some of the witnesses, for half a mile from the crossing. The company, after the accident, took additional pre- cautions, as to locking the wicket and otherwise, when trains were expected. In an action, under Lord Campbell's Act, by O.'s personal representa- tive against the company : — Held, that there was no evidence of negligence on the part of the de- 1293 NEGLIGENCE— I»i Particular Cases. 1294 fendants, and that the jury had been rightly so directed. Curtin v. Great Southern and Western Railway, 22 L. E., Ir. 219—0. A. Obligation to Fence-in Railway.] — At 1 he point where a, railway crossed a high road by a level crossing there were two large gates, which, when closed, covered the entire width of the metalled road and fenced-in the line there- from. At the side of the large gates, and beyond the width of the metalled road, but com- municating therewith by a short foot-path, there was a small gate for foot-passengers. A piece of fence, which stood immediately beyond the small gate, and against which it rested, was allowed by the railway company to get out of repair, and became rotten, in consequence whereof some horses belonging to the plaintiff, which were straying on the high road, were enabled, by passing along the short foot-path and pushing against the fence, to get on to the line, where they were killed by a passing train : — Held, that the company had failed to satisfy the obligation to fence their line imposed on them by s. 47 of the Railway Clauses Act, 1845, and were liable in an action for damages. Cliarman v. South Eastern Sailicay. 21 Q. B. D. 524 ; 57 L. J., Q. B. 597 ; 37 W. E. 8 ; 53 J. P. 86—0. A. Contributory Negligence.] — Sec cases snpra. Insufficiency of Gate — Evidence of Negli- gence.] — The fact of a railway company knowing that a gate erected under s. 8 of the Eailway Clauses Act, 1845, is out of repair by a spring catch being ineffective, although the gate be also provided with a staple and hasp, and padlock and key, is some evidence for a jury that the com- pany were guilty of negligence. Broolts v. Lon- don and JVorth Western Mailivay, 33 W. E. 167 3. IirS'KEEPEES. Evidence.] — ^A guest in an" inn, the property of the respondent company, left his bedroom in the middle of the night to go to a water-closet. There were properly lighted and easily accessible closets in the same con-idor, but he went into a dark "service" room, the door of which was shut but not locked, and fell down the unguarded well of a lift at the end of the room and was killed. The service room was not lighted or used at night, and visitors had no business there at any time. In an action brought by the personal representatives of the deceased : — Held, that there was no evidence of negligence on the part of the respondent company to go to the jury. WalJier v. JSidland Railway, 55 L. T. 489 ; 51 J. P. 116— H. L. (E.). Liability for Property of Guest — Temporary Befreshment.] — The plaintiff arrived at Carlisle with the intention of spending the night at the defendant's hotel, which adjoined the railway station. He delivered his luggage to one of the porters of the hotel, but, after reading a telegram which was waiting for him, decided not to spend the night at Carlisle, and went into the coffee- room to order some refreshments. He was not able to obtain in the coffee-room exactly what he required, and went into the station refreshment- room, which was under the same management as the hotel, and connected with it by a covered passage. Shortly afterwards he went out, telling the porter to lock up his luggage, and it was locked up in a room near the refreshment-room. On his return he found that part of it was miss- ing : — Held, that at the time of the loss of the plaintiff's goods there was no evidence of the relation of landlord and guest between him and the defendants, so as to make them responsible. Strauss v. Comity Hotel and Wine Company, 12 Q. B. D. 27 ; 53 L. J., Q. B. 25 ; 49 L. T. 601 ; 32 W. E. 170 ; 48 J. P. 69— D. 4. Dangeeous Premises ok Chattels. Buty to take Precautions — Workman com- pelled to work in dangerous Place — Knowledge of Danger.] — The plaintiff was a workman, who was directed by his employer to work in a par- ticular place. The defendants were contractors engaged in work above the place where the plaintiff was working. The defendants' work was of such a nature as to be dangerous to per- sons working below unless proper precautions were taken for their safety. The plaintiff was aware of the danger. — The plaintiff, whUe work- ing where he was directed by his employer, was injured by a piece of iron dropped by the de- fendants' workmen, and brought an action to recover damages for the injury. The jury found that the defendants had been guilty of negUgence in not taking proper precautions for those below, that there was no contributory negligence on the part of the plaintiff, and that the plaintiff did not voluntarily incur the risk : — Held, that the case was rightly left to the jury, that although the plaintiff was aware of the danger, yet, as he was compelled by the orders of his employer to work where he was working when the accident happened, the maxim " Volenti non iit injuria " did not apply, and he was entitled to recover. Woodley v. MetropolitanBistrict Railway (2 Ex. D. 384) distinguished. Thrussell v. liandyside, 20 Q. B. D. 3.-)!) ; 57 L. J., Q. B. 347 ; 58 L. T. 344 ; 52 J. P. 279— D. Knowledge of Nature and Extent of Danger.] — The plaintiff was injured by falling on steps leading to the defendants' railway station, which the defendants had allowed to be slippery and dangerous. There was no contri- butory negligence on the part of the plaintiff, but there were other steps which he might have used, and he admitted that he knew that the steps were dangerous, and went down carefully holding the handrail : — Held, that the defendants had not shown that the plaintiff, with a full knowledge of the nature and extent of the danger, had voluntarily agreed to incur it, so as to make the maxim " Volenti non fit injuria " applicable, and therefore he was entitled to re- cover. Oshorne v. London and North Western Railway, 21 Q. B. D. 220 ; 57 L. J., Q. B. 618 ; 59 L. T. 227 ; 36 W. E. 809 ; 52 J. P. 806— D. Liability of landlord to Passer-by.] -— The plaintiff was injured through a defect in the condition of a coal- plate in the pavemgnt in front of a house let by the defendant on a weekly tenancy, and such defect, though not shown to have been in existence at the com- mencement of the tenancy, had existed for 1295 NEGLIGENCE— Iw Pa/rticular Cases. 1296 nearly two years 'before the accident : — Held, that, having regard to the nature of the tenancy, there had been a re-letting of the premises after the nuisance was created, and that the defen- dant, as reversioner, was liable. Gandy v. JuUer (5 B. & S. 78 ; 9 Ih. 15) discussed. Sandfiml v. Clarlw, 21 Q. B. D. 398 ; 57 L. J., Q. B. 507 ; 69 L. T. 226 : 37 W. R. 28 ; 52 J. P. 773— D. Liahility of Landlord to Suh-tenant.] — ^Where a landlord is under no liability to his tenant to repair the premises, and a sub-tenant as to part of the premises receives personal injuries owing to the defective state of the premises, the land- lord is under no liability to such sub-tenant. Norris v. Catmur, 1 C. & E. 576— Huddleston, B. Occupier of Premises — Persons not invited.] — There is no duty on the part of the occupier of premises to render them secure for persons using them without invitation for their own gratifica- tion. Jewson V. Gatti, 1 C. & E. 564— Day, J. Buty to Fence — Diversion of Highway.] — A duty is cast upon those who, in the exercise of statutory powers, divert a public footpath, to protect, by fencing or otherwise, reasonably careful persons using the footpath from injury through going astray at the point of diversion. Ilurst V. Taylor, 14 Q. B. D. 918 ; 54 L. J., Q. B. 310 ; 33 W. K. 582 ; 49 J. P. 359— D. Act of Stranger.] ■ Marriott, infra. ■ See Silverton v. Quarry.] — Tlie plaintiff was in the occu- pation of the surface of a field, and the defen- dants were in the occupation of a quarry in the same field. Both held under the same landlord. The quarry was entirely unfenced. One of the plaintiff's bullocks fell into the quarry and was tilled : — Held, that the plaintiff was entitled to recover damages from the defendants for the loss of his bullock. Uawlten v. Shearer, 56 L. J., Q. B. 284— D. Articles sold consigned in Defective Truck to Vendee — Injury to Servant of Vendee.] — The defendant, a colliery owner, consigned coals sold by him to the buyers by rail iu a truck rented by him from a waggon company for the purposes of the colliery. Through the negligence of the defendant's servants the truck was allowed to leave the colliery in a defective state. In con- sequence of the defect in the truck injury was occasioned to the plaintiff, one of the buyer's ser- vants, who was employed in unloading the coals, and had got into the truck for that purpose : — Held, that there was a duty on the part of the defendant towards the plaintiff to exercise rea- sonable care with regard to the condition of the truck, and the defendant was therefore liable to the plaintiff in respect of the injuries sustained by him. Mliott v. Hall, or Nailstone Collieri/ Company, 15 Q. B. D. 315 ; 54 L. J., Q. B. 518"; 34 W. E. 16— D. 5. Liability foe Acts of Steanger. Nuisance near Highway — Knowledge of Owner.] — Where property abutting on a high- way becomes through the wrongful act of strangers a nuisance to the public lawfully using the highway, the owner of such property has a duty cast upon him from the moment he hecomes aware of the danger to take steps to prevent his property becoming a source of injury to the public. Silverton v. 3tarriott, 59 L. T. 61 ; 52 J. P. 677— D. Percolation of Water — Compensation — Com- pany with Statutory Powers.] — A company with statutory powers suffered water to percolate from their canal into an adjoining mill and cause damage. Such percolation arose in the first in- stance from a subsidence of the land caused by the working of a mine-owner under both the canal and the mill, and could not have been foreseen or prevented by the company by any reasonable means at any reasonable cost : — Held, that the canal company were nevertheless' guilty of negli- gence in not making good the damage when it occurred, and must pay compensation to be assessed as provided by the Canal Act, but that it was not a case for granting an injunc- tion against the company to restrain the per- colation of water. E'oans v. 3Ianchester, Shef- field, and Lincolnshire Railway, 36 Ch. D. 626 ; 57 L. J., Ch. 153 ; 57 L. T. 194 ; 36 W. E. 328— Kekewich, J. 6. Liability of Mastee foe Acts of Servant. Damage to Oyster Beds — Liability of Ship- owner and Pilot.] — A ship in charge of a com- pulsory pilot was at high water brought into and anchored by the pilot in a river in which there were oyster beds, the existence of which was known to the pilot. The place where she wEis anchored was not the usual and customary place for vessels of her size and draught to anchor in. At low water she grounded, and thereby did damage to an oyster bed. On notice of the existence of the oyster bed being given to the master, he took all reasonable means to remove the ship as speedily as possible. In an action by the lessee of the oyster bed against the shipowner and the pilot : — Held, that the act of the pilot in anchoring the ship where he did was negligence which made him liable, but that the ship was not liable because the master's duty on receiving notice of the existence of the oyster bed was to take all reasonable measures — not extraordinary measures — to remove his ship, and this he had done. The Octavia Stella, 57 L. T. 632 ; 6 Asp. M. C. 182— Hannen, P. Negligence of Servant hired to drive Cart — Liahility of Hirer.] — D. contracted with the defendants, an urban authority, to supply by the day a driver and horse to drive and draw a watering-cart belonging to the defendants. The driver was employed and paid by D., and was not under the defendants' direction or control otherwise than that their inspector directed him what streets to water. In an action to recover damages for injuries caused by the negligent conduct of the driver whilst in charge of the cart: — Held, that the defen- dants were not liable. Quarman v. Burnett (6 M. & W. 499) followed. Rourke v. Wiite Moss Colliery Company (2 C. P. D. 205) distin- guished. Jones V. Ziiverpool Corporation, 14 1297 NEGLIGENCE— I?i Particular Cases. 1298 Q. B. D. 890 ; 54 L. J., Q. B. 346 ; 33 W. E. 551 ; 49 J. P. 311— D. Implied Authority — Scope of £mploymeut. ] — In an action for injuries sustained through the negligent driving of one of defendant's servants, the only question being whether the defendant was responsible for such negligence, it appeared that the defendant was the proprietor of an hotel and shop in the town of C, and kept a pony and chaise for his own personal use. They were not used for the purpose of the defendant's business. The accident which occasioned the injuries occurred during the temporary absence of the defendant, who had left a servant, E., in charge of the shop only, with authority to sell goods, and generally to see that things went right in his absence. The defendant gave E. no authority to drive. Another servant, named M., was in charge of the yard, and it was his duty to drive when defendant required. A housekeeper had charge of the house. While the defendant was so absent, one of his relatives, Q., who admit- tedly had no authority to act as his agent, called at the house, and when leaving, E., at Q.'s re- quest, drove Q. in the pony chaise to the neigh- bouring railway station. When E. was driving the pony and chaise back from the station the accident took place : — Held, that there was no evidence proper to be submitted to the jury that E. was at the time of the accident acting in the course of his employment as the defendant's servant. Wilson v. Owens. 16 L. K., Ir. 225 — Ex. D. Affirmed in C. A. The E., which was anchored in F. outer harbour, having to be beached in the inner harbour, S., the harbour-master, directed the master of the E. where to beach her. Before the E. left the outer harbour, S. came on board, although a Trinity-house pilot was on board, and when she had arrived near the place where she had to be beached, gave directions as to the lowering of her anchor. The E. overran her anchor and grounded on it, sustaining damage. In an action against the harbour commissioners and S., the court found as a fact that there was negligence on the part of S., and that the place where the E. grounded was outside the jurisdic- tion of the harbour commissioners : — Held, that the duties of the harbour-master comprised directions as to the mooring and beaching of vessels ; that by giving directions when he went on board, S. had resumed the functions as harbour-master, and that he and the commis- sioners were therefore liable for the damage done to the E. The Bhosina, 10 P. D. 131 ; 54 L. J., P. 72 ; 53 L. T. 30 ; 33 W. E. 794 ; 5 Asp. M. C. 460— C. A. The plaintifi, after purchasing some felt from the defendants, went into a loft where the felt was stored, to inspect the article pur- chased. The loft was open at one end, and the plaintiff was acquainted with the construction of it. The plaintiff and C, a servant of the defendants, proceeded to unroll the felt, and the plaintiff, who, in the act of so doing, was walking backwards, fell from the loft, and sustained personal injuries. He brought an action against the defendants for damages for injuries caused by their negligence, and the jury by whom the case was tried, among other findings, found that, but for the plaintiff's own negligence, the accident would not have happened, and also that C. was not acting within the scope of his employment in obtaining the plaintiff's assist- ance to unroll the felt : — Held, that the verdict should be entered for the defendants. Sullivan V. O'Connor. 22 L. E., Ir. 467— C. A. 7. Licensees. Duty towards licensee — Runaway Horse and Cart — Plaintiff injured while on Defendant's Premises.] — The defendant's horse, by the negli.' gence of the defendant's servant, ran away with a cart, and turned from a highway into the yard of the defendant's house, which opened on to the highway. The plaintiff's wife, who happened to be paying a visit at the defendant's house, ran out into the yard to see what was the matter, when she was met and knocked down by the horse and cart, receiving serious in- juries : — Held, that under the circumstances there was no duty on the part of the defendant to use ordinary care towards the plaintiff's wife, and that the action was, therefore, not main- tainable. Tolkauscn v. Daxies, 57 L. J., Q. B. 392 ; 59 L. T. 436 ; 52 J. P. 804— D. Affirmed 58 L. J., Q. B. 98- C. A. • • Risks incident to Position.] — The de- ceased was employed by a builder to watch and protect certain unfinished buildings. Workmen were employed by the defendant, u, contractor, on the land near to where the deceased was on duty, to excavate the earth for the foundations of other buildings. In the performance of this operation they employed a steam crane and winch to which were attached a chain and iron bucket, by means of which the earth was raised from the excavation and thence to the carts which were to carry it away. The deceased had nothing to do with the excavations, but was standing where he need not have been, watching the defendant's men at work, and allowing the bucket to pass some three feet over his head, when the chain broke and the bucket and its contents falling upon him, so injured him that he subsequently died : — Held, that there was no evidence of negligence in the defendant's workmen ; that the deceased was at the most a bare licensee ; and that he stood where he did subject to all the risks incident to the position in which he had placed himself. Batelidor v. For- tescue, 11 Q. B. D. 474 ; 49 L. T. 644— C. A. 8. CONTEACTOK AND EMPLOYEE. Liability.] — P., who was the owner of a plot of ground in Belfast, employed C, a contractor, to build a house thereon. The front of the house faced a street, but one side extended along vacant ground, and was not protected by any hoarding. A brick fell out from the wall on this side and struck the plaintiff's child, who died from the injuries so received. In an action by the plaintiff for negligence causing death : — Held, that P. was not liable for negligence by C. as contractor, and that therefore a verdict was properly directed for him. Crawford v. Peel, 20 L. E., Ir. 332— C. P. D. The plaintiff, an owner in fee simple of a house in London, brought an action against builders claiming damages on the ground that they, in the course of rebuilding an hotel, had caused injury to the plaintiff's house by cracking and displacing 1299 NEGLIGENCE— 1« Particular Cases. 1300 the wall, and also asking for an injunction. On the motion for injunction an inquiry as to damage was directed to be taken before a special referee, and the referee assessed the structural damage at iOl., without prejudice to any question of liability. The defendants in their defence raised the contention that the works were executed under the provisions of the Metropolitan Build- ing Act, and that the damage (if any) to the plaintiff's premises was " a necessary conse- quence of carrying out the said works," and that the plaintiff's remedy (if any) was only against the building owner by whom the defendants were employed ; — Held, that the Metropolitan Building Act did not exonerate a builder from liability for damage which had arisen from his negligence and want of care and skill. The maxim " Respondeat superior " does not absolve the inferior, if by his negligence a loss has been sustained. If, in doing the act, he is guilty of negligence whereby loss and damage are occa- sioned to another, he is personally liable. White V. l«o, 58 L. t; 710— Kay, J. 9. Public Bodies. Corporation performing Public Duties — Trinity House.] — By the Merchant Shipping Act, 1854, the superintendence and management of all lighthouses and beacons in England and the adjacent seas are vested in the Trinity House, subject to the existing jurisdiction of local lighthouse authorities ; the Trinity House continuing to hold and maintain all property vested in them in the same manner and for the same purposes as they have hitherto held and maintained the same, and extensive powers are given to them, to be exercised with the consent of the Board of Trade, in respect of the manage- ment and control of lighthouses and beacons which are subject to the jurisdiction of local authorities, and in other respects. The act further provides that the light dues levied by the Trinity House shall be carried to the account of the Mercantile Marine Fund ; that the ex- penses incurred in respect of the service of light- houses and beacons shall be paid out of that fund ; that the Trinity House shall account to the Board of Trade for their receipts and expen- diture, and that their accounts shall be audited by the Commissioners of Audit : — Held, that the Corporation of Trinity House were not by virtue of the Merchant Shipping Act, 1854, constituted servants of the Crown so as to exempt them from liability to an action for negligence in the per- formance of their duties. A beacon vested in the Corporation of Trinity House having become partially destroyed, they licensed G. to remove it, and in so doing he negligently left an iron stump sticking up under water. In an action to recover damages caused thereby to the plaintiff's ship : — Held, that the defendants were liable for G.'s negligence. Gilbert v. Ti'lnity House Cor- poration, 17 Q. B. D. 795 ; 56 L. J., Q. B. 85 ; 35 W. R. 30— D. Executive Government of Colony — Control of Harbour.] — In a proceeding under the Grown Suits Act, 1S61, it appeared that a harbour was under the management of the executive govern- ment of the colony, which appointed the harbour officials and received rates for the use of staiths and wharves, but no harbour dues :^Held, that such executive government was liable for negli- gence in permitting an obstruction to remain in the harbour by which the plaintiff's ship was in- jured. Mef/. V. Williams, 9 App. Cas. 418 ; 53 h. J., P. C. 64 ; 51 L. T. 546— P. C. Cp. Tho Rhosina, ante, col. 1297. Liability of Local Boards. ] — Sea Health, YII. Liability of Vestry.]— &e Meteopolis, I. 2. 10. In other Cases. Trespass — Injury caused by Dog — Liability of Owner or Person in charge of.] — The plaintiff, a labourer, was digging a hole in the garden of a house adjoining that of the defendant, T. There was a small wall, only three feet high, between these gardens. This wall belonged to the defendant T. The plaintiff was en- gaged in doing some work at the bottom of the hole. Three dogs belonging to the de- fendant T. had been taken oat for a, walk by another defendant, S., and as he was re- turning, the dogs ran through a gate into a garden adjoining the one where the plaintiff was at work. As the dogs were running about in playfulness, one of them, a large Newfoundland, jumped over the wall, and jumped or fell into the hole where the plaintiff was working at the time in a stooping posture. The dog fell on the nape of the plaintiff's neck, causing injuries through which he was confined to bed for three weeks, and he was unable to work for some time after. In an action for these injuries against the defendant T. as the owner of the dog, and against the defendant S. as having the dogs in charge: — Held, that inasmuch as the dogs were not shown to be mischievous to the knowledge of the owner, the plaintiff had no cause of action against either of the defendants either as for a trespass or as for any breach of duty. Sunders v. TeajK, 51 L. T. 263 ; 48 J. P. 757— D. Valuer — Action by Mortgagee — Negligence and Misrepresentation.] — An intending mort- gagor, at the request of the solicitors of an intending mortgagee, applied to a firm of valuers for a valuation of the property pro- posed to be mortgaged. A valuation at the sum of 3,000Z. was sent in by the valuers direct to the mortgagee's solicitors, and the mortgage was subsequently carried out. Default having been made in payment by the mortgagor, and a loss having resulted to the mortgagee, he commenced an action against the valuers for damages for the loss sustained through their negligence, mis- representation, and breach of duty. The court being satisfied on the evidence that the defen- dants knew at the time the valuation was made that it was for the purpose of an advance, and that the valuation as made was in fact no valua- tion at all : — Held, that, under the circumstances, the defendants were liable on two grounds : (1), that they (independently of contract) owed a duty to the plaintiff which they had failed to discharge ; (2), that they had made reckless statements on which the plaintiff had acted. George v. Sldmnrjton (5 L. E., Ex. 1), and Heaven V. Pender (11 Q. B. D. 503), followed. Peeh v. Berry (37 Ch. D. 541 ) discussed. Canny. Will- son, 39 Ch. D. 39 ; 57 L. J., Ch. 1034 ; 59 L. T. 723 ; 37 W. E. 23— Chitty, J. IBOI NEGLIGENCE — Actions for Injuries. 1802 Harbour-Master — Volunteer.] — The E., which was anchored in F. outer harbour, having to be beached in the inner harbour, S., the harbour-master, directed the master of the R. where she was to be beached. Before the R. left the outer harbour S. came on board, and when she arrived near the place where she was to be beached, S. gave orders as to tlie lowering of her anchor. The R. overran her anchor and grounded on it sustaining damage : — Held, that S. was personally liable as a volunteer. TJm JRhosina, 10 P. D. 24 ; 5-t L. J., P. 42 ; 52 L. T. 140 ; 33 W. E. 599 ; 5 Asp. M. C. 350— Hannen, P. See S. C. in C. A., ante, col. 1297. Wharfinger— Jetty in Tidal Eiver — Vessel of Necessity Grounding — Implied Representa- tion. ] — The defendants, who were wharfingers, agreed with the plaintiff for a consideration to allow his vessel to discharge and load her cargo at their wharf, which abutted upon the river Thames. It was necessary in order that the vessel might be unloaded that she should be moored alongside a jetty of the defendants which ran into the river, and that she should take the ground with her cargo at the ebb of the tide. The vessel at the ebb of the tide sustained injury from the uneven nature of the ground. The bed of the river at the point where she took ground was vested in the Conservators, and the defendants had no control over it, but it was admitted that they had taken no steps to ascertain whether it was suitable for the vessel to ground upon : — Held, that there was an implied undertaking by the defendants that they had taken reasonable care to ascertain that the bottom of the river at the jetty was not in a condition to cause danger to the vessel, and that they were liable for the damage sustained by her. The Jloopcock, 14 P. D. 64 ; 60 L. T. 654 ; 37 W. E. 439— C. A. AflBrming 53 L. J., P. 15— Butt, J. Liability of Master to Servant.] — See Mastbe AND Servant, I. 2. Carriers of Passengers, Croods and Animals.] — See Caebiee. Solicitor to Client.] — See SOLICITOE, V. 2. III. ACTIONS FOR INJURIES. 1. Lord Campbell's Act. When Eepresentatives can Eecover.] — The personal representatives of a deceased person cannot maintain an action under Lord Camp- bell's Act (9 & 10 Vict. c. 93), where the de- ceased if he had survived would not have been entitled to recover. Maigh v. Royal Mail Steam Pachet Company, 52 L. J., Q. B. 640 ; 49 L. T. 802 ; 48 J. P. 230 ; 5 Asp. M. C. 189— C. A. See alto cases ante, cols. 1289, 1290. Jurisdiction of Admiralty Division.] — An ad- miralty action in rem cannot be brought to recover damages under Lord Campbell's Act for loss of life caused by a collision at sea. TUe Frwneonia (2 P. D. 163) overruled. Seward v. The Vera Cruz, 10 App. Gas. 59 ; 54 L. J., P. 9 ; 52 L. T. 474 ; 33 W. R. 477 ; 49 J. P. 324 ; 5 Asp. M. C. 386— H. L. (B.). Pecuniary Benefit to PlaintiiF.] — A husband and a wife quarrelled, separated, and lived apart without communication for eight years before the wife's death, who was killed at the age of fifty-six through the negligence of carriers. The wife,, had she survived her mother, who was aged eighty at the time of the wife's death, would have been absolutely entitled to the sum of 7,000Z. : — Held, in an action by the husband against the carriers for damages upon Lord Campbell's Act, that he had no reasonable pro- spect of pecuniary benefit if his wife's death had not occurred, and was not, therefore, entitled to damages for her death. liarrhnn v. London and North- Western Railway, 1 C. & E. 540 — Lopes, J. Widow guilty of Adultery during Husband's Lifetime — Forfeiture of Bight to Support.] — At the trial of an action brought by the plaintiff, as the widow of the deceased, under the provisions of Lord Campbell's Act (9 & 10 Vict. o. 93), s. 2, against the defendants for negligence which caused the deceased's death, it appeared that the plaintiff was at the time of her husband's death, and had for many years previously been, living apart from him in adulteiy with another man. During the time they were so living apart the deceased did not support the plaintiff, though he occasionally gave her small sums of money : — Held, that the action was not maintainable, inasmuch as the plaintiff had lost her legal right to support by reason of her adultery, and had no reasonable expectation of pecuniary advantage by the deceased remaining alive which could be taken into account by a jury. Stinipson v. Wood, 57 L. J., Q. B. 484 ; 59 L. T. 218 ; 36 W. R. 734 ; 52 J. P. 822— D. Measure of Damages — Policy of Insurance.] — The right conferred by Lord Campbell's Act, to recover damages in respect of death occasioned by a wrongful act, neglect, or default, is restricted to the actual pecuniary loss sustained by the plaintiff. Where the widow of deceased is plain- tiff, and her husband had made provision for her by a policy on his own life in her favour, the amount of such policy is not to be deducted from the amount of damages previously assessed irrespective of such consideration. She is bene- fited only by the accelerated receipt of the amount of the policy, and that benefit being represented by the interest of the money daring the period of acceleration, may be compensated by deducting future premiums from the esti- mated future earnings of the deceased. JEichx V. Kniyort, S)'r., Railioay (4 B. & S. 403, n.) approved. Grand Trunk Railioay of Canada V. Jennincjn, 13 App. Cas. 800 ; 58 L. J., P. C. 1 ; 59 L. T. 679 ; 37 W. E. 403— P. C. Distribution of Compensation Money — Liberty to Persons interested to Appear.] — In an action under Lord Campbell's Act, brought by the widow and administratrix of the deceased, the defendants paid a sum of money into court with their defence. The plaintiff admitted the sufficiency of the amount, and joined issue for the purpose of closing the pleadings and to enable the rights of the plaintiff and all other persons (if any) to be determined pursuant to the statute. The father of the deceased applied to have his name added as a party to the action, for the purpose of establishing his claim to part 1303 NEGOTIABLE INSTEUMENTS. 1304 of the money brought in. The court declined to add his name as a party to the record, but gave him liberty to appear at the trial by counsel and solicitor, and to tender evidence as to the amount of his share in the money lodged. Johnston v. Great Nortliern Railway, 20 L. E., Jr. 4 — Ex. D. Compromise — ITo Action brought.] — A sum of money was received from a railway com- pany by way of compensation by the executors of a person, whose death had resulted from injuries received in an accident on the railway, no action having been brought under Lord Campbell's Act (9 & 10 Viet. c. 93). The exe- cutors brought an action in the Chancery Divi- sion, to which all the relatives of the deceased referred to in s. 2 of 9 & 10 Vict. c. 93, were parties, asking for a declaration as to the per- sons entitled to the money : — Held, that the court could distribute the fund amongst such of the relatives of the deceased as suffered damage by reason of the death, in the same manner as a jury could have done in an action under the act. Bulmer v. Bulmcr, 25 Ch. D. 409 ; 53 L. J., Ch. 402 ; 32 ^Y. E. 380— Chitty, J. 2. In other Cases. Two Causes of Action arising from same Act.] — See Brunsilen v. I£uinp7irey, ante, col. 728. Damages— Eemoteness of— Mental Shock.] — An action will not lie for negligence causing damage by terror and occasioning nervous or mental shock unaccompanied by " impact." The plaintiff, through the negligence of the defen- dants' servant in charge of a railway crossing, ■was placed in imminent peril, and sustained a mental shock causing personal injuries. There was no " impact " : — Held, that the damage was too remote to sustain an action. Victorian Mail- way Commissioners v. Coultas, 13 App. Cas. 222 ; 67 L. J., P. C. 69 ; 58 L. T. 390 ; 37 W. E. 129 ; 52 J. P. 500— P. C. NEGOTIABLE INSTRU- MENTS. Bills of Exchange, Cheques, and Promissory notes.] — See Bills of Exchange. Bills of Lading.] — See Shipping. Holder for Value.] — Certain negotiable secu- rities were stolen from the defendants by their manager, and came into the possession of the plaintiffs for value, and without notice of any fraud. Subsequently the manager obtained the securities from the plaintiffs by fraud, and restored them to the defendants, who did not know that the securities had been out of their possession. A portion of the restored securities were not the bonds actually stolen, but bonds of a like kind and value : — Held, that in the absence of evidence to the contrary, it should be presumed that the defendants accepted the securities in discharge of their manager's obli- gation to restore them, and were therefore bona, fide holders for value, and entitled to retain them. London and County Banking Company V. London and Miver Plate Bank, 21 Q. B. D. 535 ; 57 L. J., Q. B. 601 ; 37 W. E. 89— C. A. AfiBrming on other grounds, 20 Q. B. D. 232 — Manisty, J. Deposit by Money-lender of Customers' Secc- rities.] — See Slieffield {EarV) v. London Joint Stock Banlt, ante, col. 76. Fost-Office Order cashed through Bankers.] — The plaintiffs banked with the defendants. It was the duty of the plaintiffs' secretary to pay all moneys received by him on behalf of the plaintiffs into the defendants' bank to the credit of the plaintiffs. The secretary without the knowledge of the plaintiffs kept an account at the defendants' bank. He paid into the defen- dants' bank to his own credit certain post-office orders belonging to the plaintiffs which the defendants subsequently cashed. The post-office regulations with regard to post-office orders pro- vide that, when presented for payment by »■ banker, they shall be payable without the signa- ture by the payee of the receipt contained in the order, provided the name of the banker present- ing the order is written or stamped upon it : — Held, that there had been a wrongful conversion of the post-office orders above mentioned by the defendants ; and that the regulations of the post-office with regard to the payment of post- office orders presented through bankers did not give to those instruments in the hands of bankers the character of instruments transferable to bearer by delivery so as to bring the case within the doctrine of Goodioin v. Boiarts (1 App. Cas. 476), and thus give the defendants a good title to the post-office orders independently of the authority given to the plaintiffs' secretary. Mne Art Society v. Union Bank, 17 Q. B. D. 705 ; 56 L. J., Q. B. 70 ; 55 L. T. 536 ; 35 W. E. 114 ; 51 J. P. C9— C. A. Foreign Bond — Conflict of laws — Custom of Merchants — Bona fide Holder.] — An instrument that is negotiable by the law of a foreign country is not a negotiable instrument by the law of England, so as to give a bona fide holder for value a good title against an owner of the instrument, from whom it has been stolen, in the absence of any evidence of a custom of mer- chants in this country to treat it as negotiable. Bicker v. London and County Banking Com- pany. 18 Q.B. D. 515 ; 56 L. J., Q. B. 299: 35 W. E. 469— C. A. The executors of a holder of shares in an American railway company signed blank trans- fers indorsed on the share certificates, and handed them to their brokers, in order that the shares might be registered in the names of the executors. The brokers fraudulently deposited the certificates with their bankers as security for advances, and afterwards became bankrupt. According to American law the holder of certifi- cates with transfers properly indorsed has a good legal title to the shares ; and according to mer- cantile usage in London, such certificates are treated as securities to bearer. In this case the indorsement was not attested in the manner required by the railway company for registra- tion : — Held, that the plaintiffs were entitled to 1305 NOTICE. 1306 a declaration that the shares in question formed part of the testator's estate, and to delivery of the certificates by the bankers. Williams v. Colonial Banh, 38 Ch. D. 388 ; 57 L. J., Oh. 826 ; 59 L. T. 643 ; 36 W. E. 625—0. A. NEWFOUNDLAND. See OOLONT. NEW SOUTH WALES. See COLONY. NEWSPAPER. Injunction to Bestrain Use of Name.] — See Trade. liability of Newsveudor for Fublicatiou of Libel.] — See Emmem t. Pottle, ante, col. 636. Criminal Proceedings for Libel.] — See- Defa- mation. Advertisement for Evidence.]— &« Coktempt OF COUET. Comments on Pending Action.] — See Con- tempt OP COTJET. NEW TRIAL. In Interpleader.] — See Inteepleadee. In Connty Court.] — See Countx Couet. In other Cases.] — See Peactice. NEW ZEALAND. See COLONY. NEXT FRIEND. See HUSBAND AND WIFE — INFANT ■ LUNATIC. NOTE. Bank Note.]— iSue Bankbe. Promissory Note.] — &« Bills op Exchange. NOTICE. Of Action.] — See Action. To Quit.]— &(! Landloed and Tenant, Of Incumbrance. ] — See Moetgage. Of Trial.]— /See Peactice. To Treat.] — See Lands Clauses Act. Purchaser for Value — Seasonable Inquiry,] — A purchaser or mortgagee who takes his pur- chase or security without investigation of title is affected with constructive notice of all that he would have discovered upon the usual investiga- tion of title, although not of such matters as he would not have ascertained without going behind the documents of title themselves. Gainsborough (^EarT) v. Watoomhe Terra Cotta Company, or JDunning v. Qainshorough (_EarV), 54 L. J., Ch. 991 ; 53 L. T. 116— North, J. Testatrix appointed D. and three others trustees and executors with directions that her residuary personalty should be converted, as soon as convenient, and invested, and after a life interest and legacies, bequeathed the same ia trust for the maintenance, &c., of D.'s children, and declared that the same might be paid over to the parent or parents of such children. The ultimate residue consisted of a mortgage of lease- holds for 5,000L of a character unfit for invest- ment or retention by trustees. Testatrix died in 1874. In 1878 the mortgage was transferred to D. and "W. (the remaining trustees) and E. D., a new trustee, the transfer not disclosing any trust. In 1881 D., W., and E. D. transferred the mortgage to D. alone, the transfer reciting, con- trary to the fact, that D. had paid off the mort- gage. By deed of even date, reciting the trust and that the mortgage had been transferred to D. as the residue bequeathed for his children, D. released his co-trustees. In 1882 D., "as bene- ficial owner," assigned the mortgage to the Earl of G. to secure 2,500Z. The Earl of G. did not examine D.'s title, nor employ a solicitor : — Held, that under the Conveyancing Act, 1882, s. 3, the Earl of G. was entitled to priority over the children of D. as purchaser for value without notice, as, although bound to examine the title of D., or to take the consequences of not doing so, the transfer of 1881 being, on the face of it, regular, he was not bound to inquire whether the recital of the payment of 5,000Z. by D. was true in fact. li. Constructive Notice of Provisions of Superior Grant.] — The principle of Cosser -v. Collinge (3 M. & K. 283) applies to the purchase of a sub fee-farm grant ; and the purchaser of such an estate, if he knows that he is not purchasing 1307 J^OTICE. 1308 the fee, is bound to inquire as to the provisions of tlie superior grant, and if he has liad a fair opportunity of ascertaining them, will be affected with constructive notice. Hyde v. Warden (3 Ex. D. 72) distinguished. BanU of Ireland v. BroolifielA Linen Company, 15 L. E., Ir. 37 — V.-C. Notice of Fraud — Eecltal — Control of opera-j tive part.] — The plaintiff, who had lately become! entitled to a life interest, with an ultimate remainder in fee, in ' a certain landed estate, being about to return to Australia, where he had been residing, gave to his solicitors a power of attorney in which there was a recital of his having become entitled to the estate, and that " whereas I am about to return to Australia, and am desirous of appointing attorneys to act for me during my absence from England, in the care and management of the said estates, and of dealing therewith either by way of sale .... mortgage or otherwise .... and generally to, act for me in the management of and dealings with any property belonging to me, during my absence from England." The plaintiff went abroad, and during his absence the solicitors, borrowed from the defendants a sum of money on his behalf, charging his property with the repayment of it. They also on two subsequent occasions purported to charge his property, under this power, with the repayment of ad- vances made by the defendants. On these two, last occasions the plaintiff was in England, but that was not known to the defendants. The loans V7ere made without the knowledge of the plaintiff, and the proceeds were misappropriated' by the solicitors, who absconded. While the plaintiff was in England, being about to return to Australia, he gave the solicitors a new power. This, after referring to the former power, and reciting that the plaintiff had been residing in England for a short time, appointed the solicitors his attorneys to carry out a contract for the sale of the plaintiff's real estate, and to borrow certain sums of money for him upon mortgage. The solicitors, purporting to act under this power, borrowed further moneys from the defendants, charging the plaintiff's property with the repayment. 'These loans were also made without the plaintiff's knowledge, and the proceeds were misappropriated by the solicitors. The second power was not seen by any of the defendants, or by any of their agents acquainted with the previous transactions. Neither was the attention of any of these persons in any way called to it. Neither did they, or any of their clerks engaged in this business, know that the plaintiff had been in England. This power was produced to the defendants' solicitors, but they had no knowledge of the previous transactions: — Held, that the defen- dants were not put upon such inquiry by the recital that the plaintiff had been residing in England as would make them liable for not having discovered the solicitors' frauds, and con- sequently invalidate the charge made under the second power. DanJiy v. Coutts, 29 Ch. D. 500 ; 52 L. T. 401 ; 33 W. R. 559— Kay, J. To Company — Secretary — At what Time given.] — In order that a notice to a company may be effectual, either it must be given to the company itself through its proper oflacers, or it must be received by the company in the course of the transaction of its business ; casual know- ledge acquired by the secretary as an individual and not whilst he is engaged in transacting the business of the company, cannot be deemed notice to the company. — In March, 1881, M. de- posited with S. the certificates and a blank transfer of 100 shares in a company as security for money advanced. In February, 1882, S. died, and the secretary of the company, who was a relative of S., attended his funeral, and during a discussion of the deceased's affairs became ac- quainted with the existence of the charge on the shares. In December, 1882, M. was heavily in debt to the plaintiffs, and as they pressed him for payment, he fraudulently delivered to them another blank transfer of the same shares. Some days afterwards, the transfer to the plaintiffs was in the absence of M. filled up with the name of the plaintiff 0. as transferee, and with the, numbers of the shares. The company re- fused to register the transfer to the plaintiffs on the ground that the certificates were not pro- duced, and thereupon M. offered to indemnify the 'company against any other claim, but shortly after the executors of S. gave notice to the company of the existence of the charge in favour of their testator. The company was registered under the Companies Act, 1862, and one of the articles of association provided that the shares should be transferred by deed, and another provided that the company should not be bound by or recognize any equitable interest. In an action by the plaintiffs against the executors of S. to obtain a declaration of their title to the 100 shares : — Held, that the knowledge acquired by the secretary of the com- pany at the funeral of S. of the existence of the charge in his favour could not be deemed notice of its existence to the company itself. Societe Generals de Paris v. Tramways Union Com- pany, 14 Q. B. D. 424 ; 54 L. J., Q. B. 177 ; 52 L. T. 912— C. A. See S. C. in H. L., ante, col. 397. To Directors.] — Though notice to the directors of a company is primS, facie notice to the company, it is otherwise in a case where it is certain that the directors would not communi- cate the information to the shareholders. Fitz- roy Bessemer Steel Company, In re, 50 L. T. 144 ; 32 W. R. 475 — Kay, J. Compromised on appeal, 33 W. E. 312. Constructive Notice to Director.] — A director of a company is not bound to examine entries in any of the books of the company ; and the doc- trine of constructive notice is not to be so ex- tended as to impute to him a knowledge of the contents of the books. Benham, In re, 25 Ch. D. 752 ; 60 L. T. 523 ; 32 W. E. 487— Chitty, J. tlnregistered Will — Principal and Agent.]— A testatrix, who died in 1871, by her will devised real estate in Middlesex to trustees upon trust for sale. The will was not registered in Middle- sex. The heir-at-law of the testatrix having learned that the will had not been registered, mortgaged the property to different mortgagees, and registered the mortgages. The mortgage deeds were prepared and registered by the heir- at-law himself. The surviving trustee received the rents of the property down to 1878, when he died, and in 1879 a receiver was appointed in an 1309 NUISANCE. 1310 action to administer tlie estate of tlie testatrix. The property was sold in 1882 under an order of the court, and notice of the mortgages was then given by the mortgagees to the purchasers, and the purchase-moneys were paid into court sub- ject to the claims of the mortgagees. The heir- at-law died in 1885. An application was made to transfer the purchase-moneys to the account of the devisees under the will. The mortgagees resisted the application on the ground that the act of 7 Anne, c. 20, gave them a title, because the will had not been registered. Neither of the securities was for moneys advanced, but both for old debts, and the heir-at-law acted in the mort- gage transactions as agent of both the mortga- gees :— Held, that, if persons claiming under the act had notice of the will, they could not set up the title of the heiv-at-law ; that in the present case the mortgagees were affected by the notice which their agent the heir-at-law possessed ; and that consequently their claims failed. Weii; In re, HollingwoHli v. Willing, 58 L. T. 792 — Chitty, J. . W^en Notice to Solicitors is Notice to Prin- cipal.] — A., who was entitled .under a will to share in the proceeds of sale of real estate in Middlesex, devised on trust for sale, mortgaged his interest to several persons. One set of incumbrancers registered their charge in the Middlesex registry, and on that ground claimed priority over the other incumbrancers, who had either not registered their charges at all, or had registered them after the applicants had regis- tered theu-s : — Held, that an interest of this nature was not within the Middlesex Kegistration Act (7 Anne, c. 20), s. 1, which was intended to apply to dealings with the land itself, and con- sequently no priority could be obtained by prior registration of a charge upon it. The applicants also claimed priority for their charge on the ground of notice, the alleged notice consisting of a letter not from them or their solicitors, but from the solicitors of the plaintifE in the action to the solicitors of the trustees of the will under which A. took, in which the applicants were mentioned as incumbrancers, and also of a correspondence between their solicitors and one of the firm of solicitors acting for the trustees, in which their solicitors mentioned that they were instructed for mortgagees of A., but did not say who those mortgagees were, or give any further information. These statements appeared never to have come to the knowledge of the trustees themselves : — Held, that the solicitors of the trustees were not their agents for receiv- ing notice of incumbrances, and neither of the so-called notices was such as would give priority to the applicants, or prevent a subsequent in- cumbrancer who gave direct notice to the trus- tees from obtaining priority over them. Arden V. Arden. 29 Ch. D. 702 ; 5i L. J., Ch. 655 ; 52 L. T. 610 ; 33 W. K. 593— Kay, J. In 1881 N. acted as solicitor in the formation of a limited company founded for the purpose of purchasing the business of H., the price to be J payable in fully paid-up shares, and he prepared I the memorandum and articles. The shares were allotted to H., but the contract for the sale of 3 the business was not registered. Three mouths later, upon the marriage of Dr. and Mrs. P., H. deposited with N. and two other persons, the I trustees of the marriage settlement, the certifi- .cates for fully paid-up shares (being shares received by H. for the sale of his business) to secure a debt due to Mrs. F. The certificates stated that the shares were fully paid up. In 1885 the shares were transferred into the names of the trustees. The trustees had no actual notice that the shares held by them were shares paid to H. in consideration of the sale of his business. Upon an application by the liquidator in the winding-up of the company to make the trustees liable for calls : — Held, that the onus of proving notice against the trustees was upon the liquidator ; that N. had not been guilty of gross and culpable negligence in not ascertaining the truth of the representation contained in the cer- tificates, and that the trustees were not liable. Hall J)- Co., In re, 37 Ch. D. 712 ; 57 L. J., Ch. 288 ; 58 L. T. 156— Stirling, J. The plaintiffs effected with the defendant a policy of marine insurance on goods which in- cluded risk on craft and lighters, and was not with no recourse against lightermen. At the time of effecting such policy the plaintiffs had an arrangement with one H., by which he was to do all the plaintiffs' lighterage on the terms that he was only to be liable for negligence : — Held, that the non-communication of this term was the concealment of a material fact, and that the mere disclosure of the existence of such an arrangement to the defendant's solicitor was no"" notice of it to the defendant. Tate v. Hyslop, 15 Q. B. D. 368 ; 54 L. J., Q. B. 592 ; 53 L. T. 581 ; 5 Asp. M. C. 487— C. A. Effect of Conveyancing Act, 1882, s. 3.] — The effect of s. 3 of the Conveyancing Act, 1882, which provides that a purchaser shall not be prejudicially affected by notice of any instru- ment, fact, or thing, unless in the same transac- tion it has come to the knowledge of his counsel, solicitor, or agent " as such," is that a purchaser is only to be affected with notice of such instru- ments, &c., as have come to the knowledge of the agent as agent for the purchaser. Cousins' Trusts, In re, 31 Ch. D. 671 ; 55 L. J., Ch. 662 ; 54 L. T. 376 ; 34 W. E. 393— Chitty, J. In 1871 C. mortgaged his share of a trust fund to B. In 1873 C. mortgaged the same share to K., repaying B. out of the sum advanced. In 1874 B,. transferred the mortgage to D. In 1875 C. mortgaged the same share to P., who had no notice of the prior mortgage. In all the trans- actions B., who was. solicitor to the trustees of the fund, acted as solicitor for all parties. The first notice to the trustees of any assignment by C. was of the assignment by C. to P. : — Held, that P. was entitled to priority over D. lb. NUISANCE. Obstruction of Highway.] — See Wat. Injurious to Health.] — See Health. Nuisance authorised by Statute— Power to purchase by Agreement additional Lands — Cattle Traffic] — A railway company were by their act authorised among other things to carry cattle, and also to purchase by agreement (in addition to the lands which they were empowered to pur- 1311 NUISANCE. 1312 chase compulsorily) any lands not exceeding in the whole fifty acres, in such places as should be deemed eligible, for the purpose of providing addi- tional stations, yards, and other conveniences for receiving, loading, or keeping any cattle, goods, or things conveyed or intended to be con- veyed by the railway, or for making convenient roads or ways thereto, or for any other purposes connected with the undertaking which the com- pany should judge requisite. The company were also empowered to sell such additional lands and to purchase in lieu thereof other lands which they should deem more eligible for the aforesaid purposes, and so on from time to time. The act contained no provision for compensation in re- spect of lands so purchased by agreement. Under this power the company some years after the ex- piration of the compulsory powers bought land adjoining one of their stations and used it as a yard or dock for their cattle traffic. To the occupiers of houses near the station the noise of the cattle and drovers was a nuisance which, but for the act, would have been actionable. There was no negligence in the mode in which the company conducted the business : — Held, that the purpose for which the land was acquired being expressly authorised by the act, and being incidental and necessary to the authorised use of the railway for the cattle traffic, the company were authorised to do what they did, and were not bound to choose a site more convenient to other persons ; and that the adjoining occupiers were not entitled to an injunction to restrain the company. Metropolitan Asylum District v. Sill (6 App. Cas. 193) distinguished. London, Brighton and Sovth Coast Railway v. Tmman, 11 App. Cas. 45 ; 55 L. J., Ch. 35-t ; 54 L. T. 250 ; 34 W. E. 657 ; 50 J. P. 388— H. L. (B.). Sufficiency of Powers.] — A public body was authorised by act of Parliament to construct and maintain a system of sewers and drains, and was enabled by compulsory purchase to obtain the necessary lands for the erection of works in a specified spot for the purification of the sewage, and for the conveyance of the effluent sewage- water along a specified course terminating in a specified spot. The public body was also prohi- bited from allowing the sewage to be discharged into a river until after it had been subjected to a process of purification prescribed by the act : — Held, that so long as the public body com- plied with the requirements of the act, they were not liable to an action for a nuisance in discharging the effluent sewage-water into the river at the authorized place. Lea Conservancy Board v. Hertford (^Mayor"), 48 J. P. 628 ; 1 C. & E. 299— Williams, J. Small-pox Hospital — Interlocutory Injunc- tion.] — The defendants fitted up a cottage as a small-pox hospital. The grounds in which the cottage stood were bounded by a public road on one side, open fields on two other sides, and the plaintiff's property on the fourth side. The evi- dence being conflicting, a medical referee was appointed, who reported that there was appre- ciable danger to persons dwelling in the plain- tifE's houses : — ^Held, that an injunction should be granted. Bendelow v. Wortley Union, 57 L. J., Ch. 762 ; 57 L. T. 849 ; 36 W. E. 168— Stirling, J. Pollution of Well — Injunction.] — 'So one has a right to use his own land in such a way as to be a nuisance to his neighbour, and therefore if a man puts filth or poisonous matter on his land, he must take care that it does not escape so as to poison water which his neighbour has a right to use, although his neighbour may have no property in such water at the time it is fouled. The plaintifE and defendant were adjoining land- owners, and had each a deep well on his ovm land, the plaintiff's land being at a lower level than the defendant's. The defendant turned sewage from his house into his well, and thus polluted the water that percolated underground from the defendant's to the plaintiff's land, and consequently the water which came into the plaintiff's well from such percolating water, when he used his well by pumping, came adul- terated with the sewage from the defendant's well : — Held, that the plaintifE had a right of action against the defendant for so polluting the source of supply, although until the plaintiff had appropriated it he had no property in the percolating water under his land, and although he appropriated such water by the artificial means of pumping. Ballard v. Tomlinson, 29 Oh. D. 115 ; 54 L. J., Ch. 454 ; 52 L. T. 942 ; 33 W. E. 533 ; 49 J. P. 692— C. A. Pollution of Watercourse — -Prescription — Variation of User.]— From 1832 to 1877 the refuse of a fellmongery, and the washings of dyes used in a coloured rug manufactory, had been discharged into a watercourse, which was an arterial drainage work within the jurisdiction of drainage commissioners. In 1878 the fell- mongery was abandoned, and the manufacture of leather boards substituted at the same factory. The pollution caused by the discharge of the refuse of the leather board manufactory was less in degree than that caused by the fellmongery. The drainage commissioners convicted the owners of the leather board factory under a section of a local act of polluting the stream, and this con- viction was affirmed on appeal to the Quarter Sessions :^Held, that the conviction must be confirmed, for even if the factory-owners had a prescriptive right to foul the stream, it was as fellmongers, and not as leather board manufac- turers ; and that there was no authority for holding that the variation of the user, although it cast no increased, but even a less burden on the servient tenement, enabled the factory- owners to substitute a business of a totally different kind to that originally carried on by them, and at the same time claim to maintain their original prescriptive right to pollute the watercourse, even if such right did exist. Clarke V. Somersetshire Drainage Commissioners, 57 L. J., M. C. 96 ; 59 L. T. 670 ; 36 W. E. 890 — D. Arising from Acts of several Persons— Remedy against One.] — Where several manufac- turers having their works upon a stream cause a nuisance to a, riparian owner by discharging offensive matter into the stream, it is no answer to an action brought by the owner against one of those manufacturers for such manufacturer to say that the share he contributed to the nuisance is infinitesimal and unappreciable. The riparian owner is entitled to have the water in a pure condition, and has a right to take the manufacturers one by one and prevent each from discharging his contribution to that which be- comes in the aggregate a nuisance. Tliorpe v. 1313 OFFICE. 1314 Bminfitt (8 L. R., Ch. 650), followed. Blair v. DeaUn, 57 L. T. 522 ; 52 J. P. 327— Kay, J. Where an injury has been done to the private rights of a person, whether tenant or landlord, that person la entitled to damages, although only nominal, and where in such a case an injury is apprehended, an injunction will he granted as against the party in default. In an action by N., tenant of a certain farm, for dajnages, and an injunction against T., a sani- tary authority, for polluting the plaintiff's stream : — Held, that the plaintiff's private right having been injured, he was entitled to nominal damages, and an injunction against T., although T. had only polluted the stream in conjunction with others. Nixmi v. Ik/nemontJi, Sural Sani- tary Authority, 52 J. P. 504 — D. Injonction to Bestrain — Quia timet Action.] — In order to maintain a quia timet action to restrain an apprehended injury the plaintifi must prove imminent danger of a sub- stantial kind, or that the apprehended injury, if it does come, will be irreparable. Fletcher v. Bealey, 28 Ch. D. 688 ; 54 L. J., Ch. 424 ; 52 L. T. 541 ; 33 W. E. 745— Pearson, J. The plaintiff was a manufacturer of paper, his mills being situate on the bank of a, river, the water of which he used to a large extent in his process of manufacture, for which it was essen- tial that the water should be very pure. The defendants, who were alkali manufacturers, were depositing on a piece of land close to the river, and about one mile and a half higher up than the plaintiff's mill, a large heap of refuse from their works. It was proved that in the course of a few years a liquid of a very noxious character would flow from the heap, and would continue flowing for forty years or more, and that if this liquid should find its way into the river to any appreciable extent the water would be rendered unfit for the plaintiff's manufacture, and his trade would be ruined. The plaintiff did not allege that he had as yet sustained any actual injury. The defendants said that they intended to use all proper precautions to prevent the noxious liquid from getting into the river : — Held, that it being quite possible by the use of due care to prevent the Uquid from flowing into the river, it being also possible that, before it began to flow from the heap, some method of rendering it innocuous might have been dis- covered, the action could not be maintained, and must be dismissed vyith costs. But the dismissal was expressly declared to be without prejudice to the right of the plaintiff to bring another action hereafter, in case of actual injury or im- minent danger. lb. Erection of TJrlnal by Local Board.] — A local board is not entitled under the powers given it by s. 39 of the Public Health Act, 1875, to erect a public urinal on private property so as to be a nuisance to the owner. Such a pro- ceeding is not a matter for compensation under s. 308, and will be restrained by injunction, nor need notice of the action for an injunction be given under s. 264. Sellers v. Matlock Bath Local Board, 14 Q. B. D. 928 ; 52 L. T. 762— Denman, J. Overstocking Land with Game.] — See GtAMB. NULLITY. See HUSBAND AND WIFE, I. 5. OATH. Parliamentary Oath.] — See Parliament. Evideuce. ] — See Evidence (Affidavit), OBSCENITY. See CRIMINAL LAW, II. 21. OFFICE. Compensation for Abolition of Office.] — The Metropolitan Bridges Act, 1877, provided that compensation should be paid to certain officers, including clerks, but not including solicitors, of the private companies or corporations whose bridges were taken over by the Metropolitan Board of Works under the act, upon a scale to be calculated on the basis of the emoluments actually received by them in the two years pre- vious to the passing of the act. The Deptford Greek Bridge was taken over by the board, and thereby the plaintiff, who had been clerk to the Deptford Creek Bridge Company, lost his office. He had received a salary as clerk, and also pay- ments for legal business done by him as solicitor for the company, and commission on the rents of the company's property which he received. The Deptford Creek Bridge Company had by their act power to appoint a solicitor and receiver as well as a clerk ; they had never appointed such officers, and the legal business of the company had always been done and the rents received by the clerk, who had always been a solicitor : — Held, that, by the practice of the company, these duties had been attached to the office of clerk, and that the plaintiff was entitled to compensation in respect of the payments received for discharging them as part of the emoluments of his office ; but, as to the payments for legal business done by him, only in respect of his proportion as partner in the firm of solicitors of the net profits after deduct- ing all office expenses necessarily incurred in earning the money. Brew v. Metropolitan Board of Works, 50 L. T. 138— C. A. - — Officer of Prison.] — See Prisons. OFFICIAL REFEREE. See ARBITRATION, II. 2. U U 1315 PAELIAMENT. 1316 ORDERS. See PEACTICE. OVERSEER. See POOR LAW. PALATINE COURT. See COURT. PARLIAMENT. 1. Privilege — Internal Regulalioti. 2. Promoting and Opposing Bills. 3. Parliamentary Deposits. 1. Peivilbgb — Internal Regulation. Privilege — Disobedience to Order under Debtors Act.] — Parliamentary privilege has no application to a case in which a person is liable to Imprisonment within s. 4 of the Debtors Act, 1869, as a person in a fiduciary capacity. Gent, In re, Gent-Davis v. Harris, 40 Oh. D. 190 ; 58 L. J., Ch. 162 ; 60 L. T. 355 ; 37 W. R. 151— North, J. Action for Words spoken in Parliament.] — See Dillon t. Balfour, ante, col. 633. Divorce Bills — Practice on. ] — See Husband Aim Wipe, III. 10. House of Commons — Internal Regulation of its own Procedure — Jurisdiction of Courts of Law.] — The House of Commous is not subject to the control of Her Majesty's Courts in its ad- ministration of that part of the statute-law which has relation to its internal procedure only. What is said or done within its walls c^hnot be inquired into in a court of law. Brad- laugh V. Gossett, 12 Q. B. D. 271 ; 53 L. J., Q. B. 209 ; 53 L. T. 620 ; 32 W. R. 552— D. A resolution of the House of Commons cannot change the law of the land. But a court of law has no right to inquire into the propriety of a resolution of the House restraining a member from doing *ithin the walls of the House itself something which, by the general law of the land, he had a right to do, viz., take the oath prescribed by the Parliamentary Oaths Act, 1869 (32 & 33 Vict. c. 68). n. An action will not lie against the Serjeant-at- Arms of the House of Commons for excluding a member from the House in obedience to a reso- lution of the House directing him to do so ; nor will the court grant an injunction to restrain that ofScer from using necessary force to carry out the order of the House. The plaintiff, having been returned as member for the borough of N., re- quired the Speaker of the House of Commons to ' call him to the table for the purpose of taking the oath required by 32 & 33 Vict. c. 68. _ In consequence of something which had transpired on a former occasion the Speaker declined to do so ; and the House, upon motion, resolved "that the Serjeant-at-Arms do exclude Mr. B. (the plaintiff) from the House until he shall engage not further to disturb the proceedings of the House." In an action againist the Serjeant-at- Arms praying for ah injunction to restrain him from carrying out this resolution : — Held, that this being a matter relating to the internal man- agement of the procedure of the House of Com- mons, the Court of Queen's Bench had no power to interfere. Burdett v. Aliott (14 Bast, 148), and StocMale v. Hansard (9 Ad. & E. 1), com- mented upon and approved. li. Oath — When and how to be taken— Person not believing in Supreme Being.] — ^A person who does not believe in a Supreme Being, and Is one upon whose conscience an oath, as an oath, has no binding force, is wholly incapable of taking the oath prescribed by the Parliamentary Oaths Act, 1866, as amended by the Promissory Oaths Act, 1868. The oath required to be taken by s. 1 of the act of 1866, as amended by the act of 1868, is to be taken by a member not once only in the same parliament, but every time a member after being elected and returned takes his seat. Under s. 3 of the act of 1866, the oa,th must be taken and subscribed by a member with all the due solemnities used in parliament, but so as no debate or business be interrupted by such member. Any member who takes his seat without taking the oath within the meaning of the act is liable to the penalties imposed by the act, even though the House of Commons itself were not only not to refuse him leave to be sworn, but were actually to pass a resolution per- mitting him to be sworn. Attorney- General v. Bradlawgh, 14 Q. B. D. 667 ; 54 L. J., Q. B. 205 ; 52 L. T. 589 ; 33 W. R. 673 ; 49 J. P. 500—0. A. Affirming 1 C. & B. 440— Coleridge, C. J., Grove, J., and Huddleston, B. Information by Attorney-General for Penalties — Evidence.] — Statements and avowals of a defendant as to his belief in a Supreme Being, and as to whether an oath has any bind- ing effect upon his conscience, are admissible in the trial at bar of an action for penalties under the Parliamentary Oaths Act, 1866, even though such statements or avowals were made before he was elected a member of the parlia- ment in which he sat and voted. Bvidence of the usages and practice of the House is also admissible to explain the meaning of the act and standing orders of the House with regard to making and subscribing the oath. lb. Hew Trial— Appeal.] — Where an informa- tion to recover penalties under the Parliamentary Oaths Act, 1866, has been tried at bar, a motion for a new trial must not be made ex parte, but upon notice of motion to the other side. Such a proceeding is not a criminal cause or matter 1317 PAELIAMENT. 1818 within s. 47 of the Judicature Act, 1873, so as to preclude a defendant from appealing to the Court of Appeal from the judgment of the High Court at bar. Ih. 2. Peomoting and Opposing Bills. Sanction of Court — Committee of Bondholders — Leave to promote Bill on behalf of whole Body.] — In an action by some mortgage bond- holders on behalf of the whole body, against a body of trustees, for the purpose of realising their security, a receiver was appointed and put in possession of the mortgaged property. The defendants promoted a bill in parliament, the effect of which, if it became law, would be to alter the contract between them and the bond- holders. Leave was then obtained from the court for a committee appointed at a meeting of the bondholders to oppose the bill, the costs of the opposition to be paid out of the money in the hands of the receiver. It being found neces- sary to put the amendments proposed in the form of a bill, the court gave leave to a repre- sentative committee of the bondholders to pro- mote a bill, and ordered the costs to be paid out of the property of the bondholders comprised in the mortgage. On appeal, the court expressed donbts as to the jurisdiction to make the order appealed from, but, by consent, made an order by which they discharged the order of the court below, and, without saying anything in sanction of the proposed bill, gave liberty to the repre- sentative committee to promote a bill carrying into effect certain terms, the costs of promoting the bm and of the application in both courts to be reserved. BueliiTigham v. Whiteliaven Trus- tees, 55 L. T. 69i— C. A. Expenses of Promoting Bill — Kural Sanitary Authority.] — A rural sanitary authority has no power to charge the rates with the expenses of promoting a bill in Parliament. Cleverton v. St. German's Union, 56 L. J., Q. B. 83 — Stephen, Opposing Bill — Allowance by Auditor out of Toor Sate.] — The overseers of a parish are •entitled to defray out of the poor rate such reasonable and moderate expenses as have been incurred by them at the request of the vestry in resisting an attempt by private individuals to impose an extra burden on the poor rate by means of a bill in Parliament proposing to give power to charge the poor rate with the payment of interest on the share capital of the under- taking. Bsg. V. SiUy, Beg. v. Wliite, 14 Q. B. D. 358 ; 54 L. J., M. C. 23 ; 52 L.T. 116 ; 33 W. K. 248 ; 49 J. P. 294— C. A. Vexatious Opposition — Costs — Summary Pro- cedure to enforce Payment.] — Under the pro- visions of the Act 28 & 29 Vict. c. 27, for the summary recovery by an action of debt of the costs of vexatious opposition to a bill in parlia- ment, the plaintiff on filing the documents men- tioned in s. 5 of the Act, is, unless the defendant has obtained leave from the court to deliver a defence to the action, entitled as a matter of right to sign judgment for the amount certified by the parliamentary taxing officer to be due to him, but the defendant can, after judgment is signed, move to set it aside, on the ground that the parliamentary committee, which reported that the opposition to the bill was vexatious had no jurisdiction in the particular case. The defendant cannot deliver a defence to the action without the leave of the court. Semble (Lopes, L. J., doubting), that leave to deliver a defence on the ground that the committee had no juris- diction may be given before judgment is signed. The defendants to such an action having, with- out first obtaining the leave of the court, de- livered a defence denying the jurisdiction of the parliamentary committee : — Held, that judg- ment must be signed for the amount claimed, but that it would still be open to the defendants to move to set aside the judgment. Mallet v. Hanley, 18 Q. B. D. 303 ; 56 L. J., Q. B. 136 ; 57 L. T. 913 ; 35 W. R. 201 ; 51 J. P. 692— C. A. Since the Judicature Act a statement of claim is to be used by the plaintiff in place of the de- claration referred to in s. 5 of the act. li. Petitioner to pay Costs — Against whom Order may be made.] — A bill, promoted by the plaintiff, being before a parliamentary com- mittee, a petition was presented against it in the name and under the seal of a company of which the defendants were directors. The com- mittee reported that the promoter had been vexatiously subjected to expense on the pro- motion of the bUl by the opposition of the defendants, petitioners against the bill, and that the promoter was entitled to recover a portion of his costs from the defendants. The bill of costs was accordingly taxed, and a certificate obtained under 28 & 29 Vict. u. 27, and the plaintiff commenced an action and signed judg- ment for the certified amount. On an applica- tion to set aside the judgment and for leave to defend : — Held (Lord Esher, M.E., dissenting), that the defendants not being the actual pe- titioners, the order on them to pay costs was made without jurisdiction, and could not be enforced. Mallet v. JSanley, 18 Q. B. D. 787 ; 56 L. J., Q. B. 384 ; 57 L. T. 913 ; 35 W. E. 601— C. A. 3. Pabliambntaet Deposits. Application of — Abandonment — Diminu- tion of Value of Land.] — A railway company being about to apply for an act of parliament for making an extension line, assented to F., an owner of land over which the Une was intended to pass, commencing the line over his own land. F. accordingly made an embankment over his land, and was paid for the work by the company. After a considerable part of the work on F.'s land had been done, the company obtained their act giving power to construct the railway in the proposed line. The act contained a pro- viso that if the new line were not opened for traffic within five years the parliamentary de- posit should be applied towards compensating landowners or other persons whose land bad been interfered with or rendered less valuable " by the commencement, construction, or aban- donment of the railway." The extension rail- way was not completed within five years, but no warrant of abandonment was obtained under the Railways Abandonment Act. A fresh Act was passed, authorising a petition for winding up the company and the sale of the undertaking by the official liquidator. A petition having u u 2 1819 PAETITION. 1320 been presented by F.'s mortgagees and the trustee in his liquidation for the application of the parliamentaiy deposit in compensation for the injury done to his estate by the commence- ment, construction, or abandonment of the works : — Held, that the undertaking was aban- doned within the meaning of the act ; that the words "commencement, construction, or aban- donment," must be read disjunctively ; that F., having commenced the works on his own land before the company had obtained their act, on the speculation that they would obtain power to construct the railway, the petitioners had no claim for compensation for injury to the estate by the commencement or construction of the railway ; but they had a claim for compensation for injury done by the abandonment of the railway. Potteries, Slirewsiury, and North Wales Company, In re, 25 Ch. D. 251 ; 53 L. J., Ch. 556 ; 50 L. T. 104 ; 32 W. E. 300—0. A. Whether the words " commencement of the railway" must be confined to its commence- ment by the company under its parliamentary powers, or would include its commencement in anticipation of such powers, quaere. li. Collateral Obligation — Covenant to build Station — Covenant to put up Fences.] — Where the act incorporating a railway company con- tains a clause in the usual form, that in case of the abandonment of the railway the parlia- mentary deposit shall be applicable towards compensating any landowners whose property may have been interfered with or rendered less valuable by the commencement, construction, or abandonment of the railway, a landowner can, as a general rule, only claim compensation on account of acts done or omitted to be done by the company under their statutory powers, and not on account of any collateral obligation entered into by the company : — But held (dis- sentiente Lopes, L.J.), that where a company has entered into a collateral obligation of such a nature that the breach of the obligation is neces- sarily involved in the abandonment of the rail- way and undistinguishable from it, such as a covenant to build a station, the breach of such obligation may be taken into account in assessing the diminution of value of the land. A covenant to put up fences on the land taken by the com- pany is not such an obligation as could form the subject of a claim for compensation out of the deposit. Rutliin Railway, In re, Hughes' Trits- tees. Ex parte, 32 Ch. D. 438 ; 56 L. J., Ch. 30 ; 55 L. T. 237 ; 34 W. E. .581—0. A. Who entitled to Compensation — Measure of Damages.] — Mortgagees of a landowner may be persons entitled to claim compensation under the Eailways Abandonment Act : — The measure of injury must be determined by comparing the value of the estate immediately before with its value immediately after the abandonment. Potteries, Shrewsbury, and North Wales Com- pany, In re, supra. Claims of Promoters and Parliamentary Agents.] — Under the usual provision, in an act incorporating a railway Sompany, that in the event of the undertaking being abortive the parliamentary deposit shall either be forfeited to the Crown, or, in the discretion of the court, be wholly or in part applied, as part of the assets of the company, for the benefit of the creditors thereof, the court will not apply the deposit for the benefit of all the creditors without distinction as to the nature and merit of their claims ; and accordingly the promoters and the parliamentary agents claiming in respect of costs incurred in obtaining the act, or in relation to the promotion of the company, not being meritorious creditors, will not be admitted to share in the distribution of the fund. Birmingham and Lichfield Junction Railway, In re, 28 Oh. D. 652 ; 54 L. J., Ch. 580 ; 52 L. T. 729 ; 33 W. E. 517— Chitty, J. The promoter of a railway company raised the moneys requisite for the parliamentary deposit by obtaining an advance from a bank upon their personal security ; and it was arranged by the promoters and the provisional committee of the company, as appeared by a minute, that the in- terest payable upon foot of the advance would be provided and paid by the company. The railway was afterwards abandoned, and an order to wind up the company having been made : — Held, that a claim by the promoters for interest paid on foot of the advance should be disallowed. Ennis and West Clare Railway, In re, 15 L. K., Ii-. 180— V.-C. PAROL EVIDENCE. See EVIDENCE. PARSON. See ECCLESIASTICAL LAW. PARTICULARS. Of Sale.]— Sue Vbndoe and Pukchasbr. In Patent Cases.] — See Patent. In other Cases.] — See Practice. PARTIES. See PEACTICE. PARTITION. Sale instead of Partition — Jurisdiction- Dis- cretion of Court.] — The circumstances stated in s. 3 of the Partition Act, 1868, when they exist, give the court jurisdiction to direct a sale instead of partition ; but even when the jurisdiction exists, the judge has a discretion with which the 1321 PAETITION. 1822 Court of Appeal will not ordinarily interfere. Where it does not appear that a decision cannot reasonably be made, a sale should not be directed in the absence of other circumstances to give the jurisdiction. Dyer, In re, Dyer v. Paynter, 54 L. J., Ch. 1133 ; 53 L. T. 744 ; 33 W. E. 806 — C. A. The Partition Act, 1876 (39 & 40 Vict. c. 17), s. 6, allowing a sale to be ordered in lieu of parti- tion on the request of infants, only applies to cases within the Partition Act, 1868, s. 3, which latter section confines the jurisdiction of the court to actions in which, before its passing, a de- cree for partition might have been made. No such deci'ee could have been made where the real estate in question was liable to be divided in an unascertained number of shares ; conse- quently no order for sale of real estate could be made under the act in a case in which it was decided that any children of a living person who might be born would be entitled to share equally with those born during the lifetime of a tenant for life. Where real estate consisted of agricultural property in Norfolk, the court re- fused to order the estate to be sold under Eules of Court, 1883, Ord. LI. r. 1, for the purpose of paying the costs of the action, in which a de- claration of the rights of the persons entitled had been obtained, and a receiver appointed against their father, who had previously been in possession and refused to account, but directed the receiver to apply any funds in his hands, after keeping down incumbrances, in payment of the costs. Miles v. Jarvis, 50 L. T. 48 — Kay, J. "Good'Beason to the Contrary" — Arti- ficial Depreciation of land.] — It is not " good reason to the contrary" against a sale instead of partition, under the 4th section of the Partition Act, 1868, that owing to agrarian agitation the value of land is depreciated, and that conse- quently the interest on the purchase-money of the lands proposed to be sold would be but fifty per cent, of the amount of the rents payable thereout, to the alleged injury of the parties showing cause. WhitwelVs Estate, In re, 19 L, E., Ir. 45 — Monroe, J. Application for Sale by Owner of less than half of Property — Discretion.] — Upon an appli- cation for a sale of property held by tenants in common, made by the owner of less than a moiety under s. 5 of the Partition Act, 1868, the court has a discretion, and is not bound to order a sale, even if none of the other persons interested wiU undertake to purchase the appli- cant's share. The onus is on the applicant under s. 5 to show some good reason for ordering a sale of the property. Michardson v. Feary, 39 Ch. D. 45 ; 57 L. J., Ch. 1049 ; 59 L. T. 165 ; 36 W. E. 807— North, J. Parties — Person of Unsound Mind not so found — Next Friend.] — ^A partition action may be brought by a person of Unsound mind, not so found, by a next friend. Half hide v. Rohinson, (9 L. E., Ch. 373) distinguished. Where, there- fore, an action for sale under the Partition Acts was brought by two tenants in common, one of whom being stated to be of weak mind, sued by the other as his next friend, the court being of opinion that an action in this form being primS, facie for his benefit could be maintained, re- fused to strike out his name as co-plaintiflE ; but intimated an opinion that, at the trial, his re- quest for sale by his next friend, assuming that the next friend could efEeotually make a re- quest, could not be acted upon in the same way as a request by a person not under disability, without the court being satisfied that the sale would be for his benefit. Porter v. Porter, 37 Ch. D. 420 ; 58 L. T. 688 ; 36 W. E. 580— C. A. Sale out of Court— Form of Order.]- In a sale out of court three things are required — that the reserved bid should be fixed by the chief clerk, that the auctioneer's remuneration should be similarly fixed, and that the purchase-money should be paid directly into court. Pitt v. White, 57 L. T. 650— Kay, J. And see Stedman, In, re, infra. Some Parties not sui juris.] — Where some of the parties beneficially interested are not sui juris, and the trustees have no power of sale under the trust deed, there is no jurisdiction under the Partition Act, 1868, s. 8, to order a sale out of court. Strugnell v. Strugnell, 27 Ch. D. 258 ; 53 L. J., Ch. 1167 ; 51 L. T. 512 ; 33 W. E. 30— Chitty, J. Evidence — Persons interested.] — On an action for the partition or sale of real estate coming on for hearing as a short cause, counsel for the plaintiff asked for the usual judgment directing an inquiry as to the persons interested, and whether they were parties to the action, and if it should be certified that all persons interested were parties, then directing a sale : — Held, that in these cases the shortest and least expensive way was to prove the title in court in the first instance ; strict evidence was not necessary, but it would be sufficient if there was an affidavit by a competent person. The case having stood over, such an affidavit was produced, and the court being satisfied that all persons interested were parties to the action, and desired a sale, an order was made for sale out of court, with the usual directions as to fixing the reserved price, and the auctioneer's remuneration, and as to pay- ment of the deposit and the rest of the purchase- money into court. Stedman, In re, Coomie v. Vincent, 58 L. T. 709— Kay, J. Decree when granted — Power of Sale.] — A decree for the partition of property can be granted notwithstanding the existence of a power given to trustees to sell the property for the purpose of a division. Boyd v. Allen, 24 Ch. D. 622 ; 53 L. J., Ch. 701 ; 48 L. T. 628 ; 31 W. E. 544— Fry, J. Judgment, dispensing with Service of B^otice of — Distribution of Fund — ^Advertisements.] — Having regard to sub-s. 3 of s. 4 of the Par- tition Act, 1876 (V), the court has no jurisdiction under s. 35 of Ord. LV. of the Eules of Court, 1883, to dispense with service of notice of the judgment in a partition action except on the imperative terms of publishing advertisements. Where, therefore, service of notice of the judg- ment had been dispensed with, but no advertise- ments had been published, the court, upon the hearing of the action on further consideration, postponed distribution of the estate for six months, and directed proper advertisements to be published in the meantime. Phillips v. Andrews, 56 L. T. 108 ; 35 W. E. 266-Kay, J. 1823 PARTNEESHIP— Miat Constitutes— Bovill's Act. 1324 Sale by Court— Order to Pay Over — Subse- quent Lunacy of Beneficiary.] — On the 21st May, 1879, P. N. died intestate, leaving M. H. P. one of four co-heiresses-at-law. On 18th Feb- rnaiy, 1880, an action was brought asking for sale of P. N.'s real estate in lieu of partition. On the 15th June, 1880, an order was made for sale. The sale took place on the 30th August, 1880, and the proceeds of sale were carried to the credit of the action, " proceeds of the sale of the testator's real estate." On the 22nd April, 1882, by the order on further consideration in the said action, one-fourth part of the money standing to that account was ordered to be paid to M. H. P., subject to duty. M. H. P. left the money in court, and took no steps concerning it. On the lith January, 1 884, by an order made on a petition presented in lunacy, T. was authorised to apply to the Chancery Division for a transfer of the said one-fourth amounting to iiil. 17s. 9d.to the account of M. H. P., a person of unsound mind, " proceeds of the sale of the real estate of P. N.," and the transfer was made accordingly. M. H. P. died on the 10th June, 1884 : — Held, that there being no evidence that M. H. P. was of unsound mind at the date of the sale and the order for payment to her, the fund then ordered to be paid to her belonged to her absolutely without any trust or equity for re-conversion, and went on her death to her personal representatives. PioTiard, In re, Tv/i-ner v. Nicholson, 53 L. T. 293— Pearson. J. PARTNERSHIP. I. "What Constitutes— Bovill's Act, 1323. II. Eights and Liabilities of Paetnbes AND THIKD PAETIES. 1. Generally, 1325. 2. Actions, 1330. III. Rights and Liabilities of Paetnees between Themselves. 1. Generally, 1332. 2. Jurisdiction of Courts over, 1337. 1. WHAT CONSTITUTES— BOVILL'S ACT. Joint Adventure — Equitable Contribution in Sespect of Default in Payment of a Loss by one of Contracting Parties.] — By agreement between the plaintiffs, the defendants, and Messrs. L. B. & Co., a cargo of Californian wheat was to be shipped for their joint account by the corre- spondents of L. B. & Co., at San Francisco, con- signed to the plaintiffs at Liverpool for sale upon certain special terms ; the shippers to re- imburse themselves for cost and insurance of the cargo by drafts on the plaintiffs at sixty days' sight to the extent of 45s. per quarter, less freight, and for the balance of invoice, amount by separate drafts at sixty days' sight upon each of the above parties for one-third of the excess. The cargo was shipped, and a bill was drawn by the San Francisco house for 29,353Z. 18s. \d., on account of the invoice price of the wheat, less freight, upon the plaintiffs, and was duly ac- cepted and paid by them, together with freight. insurance, and other charges in respect of the cargo ; and the wheat on arrival was sold by the plaintiffs at a loss. In December, 1883, L. B. & Co. became insolvent, and compounded with their creditors for 30 per cent, of their liabilities, which composition the plaintiffs received, leaving an unpaid balance of 1,760Z. 10s. 9d. due from that firm for their share of the loss on the ad- venture : — Held, that the purchase and shipment of the wheat was a joint adventure, each of the three firms to participate equally in the profit or loss ; and that the defendants, according to the rule of equity, which, since the Judicature Act, 1873, is to prevail, were liable to contribute equally vrith the plaintiffs to make good the de- fault of L. B. & Co. Lowe v. Dixon, 16 Q. B. D. 455 ; 34 W. E. 441— Lopes, J. Sharing Profits and Losses.] — An agreement to share profits and losses is not, at any rate as between the parties to the agreement, conclusive as to their being partners ; the question of part- nership depends on the intention of the parties as shown by the agreement. Pawsey v. Armstrong (18 Ch. D. 690) observed upon. WalherY. Sirsoh, 27 Ch. D. 460) ; 54 L. J., Ch. 315 ; 51 L. T. 681 ; 32 W. E. 992 — C. A. See also London Firumcial Association v. Kellt, ante, col. 401. Advance of Money — Share of Profits — Bovill's Act.] — W., a licensed victualler, lent 500Z. to B., a tailor, to set him up in business as a tailor, upon the terms that W. was to recall the 500?., with interest at five per cent., at forty-eight hours' notice ; that until the principal sum and interest were paid off, he was to receive half the net profits of the business, after allowing B. il. a week for his services ; that B . should not dispose of the stock-in-trade, or engage in any other business, but should devote the whole of his time to this business, should render proper accounts at certain dates, and give W. every facility for examining them, and should pay the costs of any accountant paid by W. on that behalf : — Held, that the agreement which embodied these terms constituted a partnership between W. andB. ; and that W. was not protected by Bovill's Act (28 & 29 Vict. c. 86) against liability for the debts in- curred in the business. Frowde v. Williwms, 56 L. J., Q. B. 62 ; 56 L. T. 441— D. Participation in profits, although strong evi- dence, is not conclusive evidence of a partner- ship. The question of partnership must be decided by the intention of the parties to be ascertained from the contents of the written instruments, if any, and the conduct of the parties. The plaintiff advanced money to a contractor to enable him to carry out a contract with a railway company for the construction of a railway, and the parties executed a deed by which the contractor assigned to the plaintiff all his machinery, plant, &c., and all shares and debentures he might receive from the company to secure the repayment of the loan. The deed contained the following provisions : — (1) That the plaintiff should receive ten per cent, interest on the money advanced, and ten per cent, of the net profits of the contract ; (2) that the con- tractor should apply all the moneys advanced in carrying on the works ; (3) that if the contractor should become banki-upt the plaintiff might enter and complete the works ; (4) that the plaintiff might sell the property in case of default, but that he should not sell the shares or 1325 PAETNEESHIP— Partne7-s and Third Parties. 1326 debentures within twelve months after the com- pletion of the contract ; (5) that in calculating the net profits the contractor should be allowed to draw out 1 ,0001. a year for his services. Letters passed between the plaintiff and the contractor in which the money advanced was spoken of as "capital" and " working capital " and expres- sions were used showing that both parties had a common interest in the works : — Held, that the stipulations in the deed and the expressions in the correspondence were all consistent with the object of securing repayment of the money advanced, and were not sufficient evidence of a partnership between the parties. JBadeley v. Consolidated Bank, 38 Ch. D. 233 ; 57 L. J., Ch. 468 ; 59 L. T. 419 ; 36 W. E. 715— C. A. Bovill's Act — ^Action to enforce Security'.] — An action to enforce a security given by a trader who has become bankrupt is not an action to recover principal, profits, or interest within the 5th section of BoviLl's Act, and may, therefore, be maintained by a person entitled to receive a share of the profits of a trader, although the other creditors of the trader have not been satisfied. Tb. Substitution of New Agreement.] — In September, 1882, a loan was made to a trader on his bond, the agreement in writing being that the lender should receive interest at 51. per cent, and one-half of the profits of the business of the trader for three years ; be in- structed in the business ; and at the end of that time the lender had an option to be admitted a partner. In October, 1883, the agreement of 1882 was cancelled, and another entered into that the lender should receive 20Z. a month as interest on the loan in lieu of the former interest and share of profits. The borrower became in- solvent in 1886, and executed a deed of trust for the benefit of his creditors : — Held, that the claim of the lender came within the provisions of ss. 1 and 5 of the Partnership Law Amendment (Bovill's) Act, 28 & 29 Vict. c. 86, and must be postponed until the debts of the other creditors had been satisfied. Sto7te's Trusts, In re, 33 Ch. D. 541 ; 55 L. J., Ch. 795 ; 55 L. T. 256 ; 35 W. K. 54— Kay, J. IL EIGHTS K^Vi LIABILITIES OF PARTNERS AND THIRD PARTIES. 1. Gbneeallt. Bights on Bill endorsed by Partner.] — No action will lie by a firm as indorsees of a bill of exchange against their indorsers if a member of the plaintiff firm be one of the indorsers. JFoster v. Ward, 1 C. & E. 168— Williams, J. Bill Brawn against Firm — Acceptance by one Partner — Joint or separate Liability.] — A bill of exchange was drawn against a firm of B. & Co. B.j'one of the partners, accepted the bill, signing the name of the firm " B. & Co.," and adding his own underneath. B. died, and the holder of the bill took out an originating summons for the administration of B.'s estate, on which an order was made for the administration of the estate, distinguishing the separate from the partnership debts :. — Held, that the acceptance of the bill was the acceptance of the firm, and that the addition of B.'s name did not make him sepa- rately liable. And, it having been proved that B.'s estate was insufficient for the payment of his separate debts, and therefore that no part would be available for payment of the partner- ship debts, the summons was dismissed. Whether a joint creditor of a partnership fijm can take out an originating summons for the administra- tion of the estate of the deceased partner, quaere. Barnard, In re, Edwards v. Barnard, 32 Ch. D. 447 ; 55 L. J., Ch. 935 ; 55 L. T. 40 ; 34 W. E. 782—0. A. Partner Assigning "his Share" — Share of Firm passing.] — Where by a memorandum of agreement between M., the plaintiffs, and three other firms, M. agreed to surrender to the plain- tiffs " his share " in a certain mortgage held by him as trustee : — Held, that under the circum- stances of the case the share of M.'s firm therein passed, and not merely his own individual share as between himself and his partner. Marshal V. Maelure, 10 App. Cas. 325— P. C. Mortgage of Share— Bight of Mortgagee to Account.] — When a partner mortgages his share in the partnership and the mortgagee brings an action to realise his mortgage, the proper order is to direct an account of what the mortgagor's interest in the partnership was at the date when the mortgagee proceeded to take possession under his mortgage, i.e., at the date of the writ ; but it a dissolution of the partnership has previously taken place, the date of the dissolution is the date at which the account is to be taken. Whetham v. Damy, 30 Ch. D. 574 ; 53 L. T. 501 ; 33 W. E. 925— North, J. Power of Surviving Partner to Mortgage Assets to Secure prior Debt.] — A firm consist- ing of two partners, had secured the balance of their current account with a bank by the deposit of certain deeds. One of the partners died, and the bank requiring further security from the sur- viving partner to secure the balance then due to them on the account, the surviving partner deposited with the bank a contract for the pur- chase of some lands as further security, the con- tract being part of the assets of the firm : — Held, that the surviving partner was entitled to mortgage the assets of the partnership for a past debt. Cloiigh, In re, Bradford Banking Company v. Oare, 31 Ch. D. 324 ; 55 L. J., Ch. 77 ; 53 L. T. 716 ; 84 W. E. 96 —North, J. Negligence and Fraud of Partner — Liability of Firm.] — In May, 1869, P., a member of a firm of solicitors, suggested to the plaintiff as an in- vestment for a sum of 3,557Z. in court to which he was entitled, a mortgage of a leasehold pro- perty at E., and made certain misrepresentations with respect to the property. In July the money was paid out of court to the firm on behalf of the plaintiff, and the balance, after certain de- ductions for the costs of payment out, was shortly afterwards paid away by two cheques signed by the firm for 33?. and S,iOOl. respec- tively. P. sent the 33Z. to the plaintiff, and in- formed him that the 8,400Z. was invested upon the security at E. as arranged, and in August, 1869, he sent to the plaintiff a memorandum of deposit to the effect that he held the title-deeds as solicitor for and on behalf of the plaintiff to secure 3,400Z. In 1875 P. executed a legal mort- 1327 PAETNEESHIP— Poj-teers and Third Parties. gage of the same property to H. without dis- closing the plaintifE's equitable charge. The pro- perty was insufficient to satisfy both charges. P. continued to pay interest to the plaintifE on his investment until 1881, when his fraud was discovered and he absconded. The firm did not make any charge to the plaintifE for investment, but their bill of costs was limited to the costs inci- dental to the payment of the money out of court. In 1884 the plaintifE brought an action against the firm to recover from them the 3,i00l. lost by P.'s fraud :■ — Held, first, that the firm was guilty of negligence, in the transactions of 1869, in not seeing that the plaintifE's money was invested upon a proper mortgage, but that that claim was barred by the statute ; secondly, that they were not liable for P.'s misrepresentations, there being no sufficient proof that the plaintiff relied upon them ; thirdly, that they were not liable for P.'s fraud in 1875, as it was not committed in the course of the firm's business. The fact that a representation is by its nature calculated to induce a person to enter into a contract does not raise a presumption of law that he relied upon such representation. Snghes v. Twisden. 55 L. J., Ch. 481 ; 54 L. T. 570 ; 34 W. E. 498— North, J. Trustees under a will deposited certain bonds payable to bearer with P., a member of the firm of solicitors who were acting for the estate. His partners had no knowledge of this, but letters re- ferring to the bonds were copied in the letter- book of the firm and were charged for in the bill of costs of the firm, and the bonds were in- cluded in a statement of account which the firm made out for the trustees. P. paid some of the interest of the bonds by cheques of the firm, but on each occasion recouped the firm by a cheque for the same amount on his private account. P. misappropriated the bonds : — Held, that the cheques, letters and entries were too ambiguous to affect the other partners with acquiescence in P. having custody of the bonds as part of the partnership business, and that they could not be held liable for their misappropriation. Har- man v. Johnson (2 E. & B. 61) and Bundonald (JEarl of) V. Masterman (7 L. E., Eq. 504) con- sidered. Clmtherv. Twisden, 28 Ch. D. 340 ; 54 L. J., Ch. 408 ; 52 L. T. 330 ; 33 W. E. 435— C. A. Sale of Goodwill.] — See Goodwill. Baukiuptcy of one Partner — Bight of others to give Discharge for Partnership Assets.] — .When one partner in a firm has become bank- rupt, his solvent partner can give a good dis- charge for debts due to the firm, and has a right, as against the trustee of the insolvent partner, to get in the assets of the partnership, and even to use the name of the trustee for that purpose upon giving him an indemnity. Owen, Ex parte, Owen, In re, 13 Q. B. D. 113 ; 53 L. J., Q. B. 863 ; 32 W. E. 811— C. A. Authority of Partner to enter into Partner- ship with other Persons.] — One of three part- ners lent money on the terms that the borrower, besides paying interest, should make over one half of his profits to the firm to which the lender belonged : — Held, that this agreement did not constitute a partnership between the firm and the borrower, one partner having no authority from the other partners to enter into a partner- ship with other persons in another business. 1328 , 13 App. Cas. 788 ; 57 L. 3., P. C. 106 ; 59 L.'T. 738— P. C. Liability of retired Partner — Bill of Exchange — Compromise of Actions.] — The defendant was a partner in the firm of G. & Co. from 1st January to 30th June, 1885, and no notice was given to the plaintiff of his retirement. Between those dates the plaintiff discounted an acceptance indorsed by G. & Co., which was dishonoured. The plaintiff sued G. & Co. for the amount, and G. & Co. brought a cross-action against the plaintiff for recovery of the bill. Both actions were stayed by order of the court on G. & Co. giving to the plaintiff a second acceptance for the amount of the first and lOZ. for costs, and the plaintiff giving up certain securities for the debt which were in his possession. The second acceptance was dishonoured, and the plaintiff sued the defendant upon it as a member of the firm of G. & Co. :— Held, that the defen- dant was not liable, as the bill of exchange was given in settlement of legal proceedings, which involved a give-and-take between the parties, and was made without his knowledge or consent. Crane v. Lewis, 36 W. E. 480 — Denman, J. Retired Partner acting as Parlsier — Fraud of Continuing Partners.] — H. P., who had been a partner in a firm of solicitors, and had during that time attended to the management of a certain trust, continued to act in relation to a change of investment of part of the trust funds after he had retired from the firm, as if he were still a partner, and wrote to the trustees from the office of the firm saying that he had obtained a power of attorney authorising. " our brokers" to sell the stock, and asking them to sign it, and send it to the office of the firm. The trustees did as requested, and the stock was sold, and the money received by H. P.'s late partners, who misapplied it, and it was lost to the trust. It appeared that the tenant for life was aware at this time that H. P. had retired from the firm, but the trustees were not : — Held, that H. P. was liable to make good to the trust the capital sum lost, and interest from the last day on which any was paid. Slack V. ParUr, 54 L. T. 212— Kay, J. liability of Incoming Partner for Debts of Firm.] — Where an individual has entered an appearance in an action against a firm, there must be a novation to render him liable for a debt contracted before he was a member. Cripps V. Tappin, 1 C. & E. 13— Cave, J. Liability by Estoppel.] — Goods had been sup- plied to the M. Mansions upon the order of the housekeeper. The vendor sued the owner and the secretary for payment. The secretary had previously paid for goods supplied by the plaintiff by cheques, signed " M. Mansions account " :— Held, that the doctrine in Scarf y. Jardine (7 App. Cas. 345) applied, and that the plaintifE could not sue the secretary, whose liability depended only on estoppel, at the same time as the real owner. Joiies v. Asliwin, 1 C. & B. 159— Cave, J. Bight of Creditor against Estate of Deceased and of Surviving Partner.] — The creditor of a partnership firm, although not strictly a joint and several creditor, has concurrent remedies against the estate of a deceased partner and 1329 PARTNEESHIP— Partners and Third Parties. 1330 the surviving partner ; and it makes no difEerence which remedy he pursues first. But it is neces- sary that the surviving partner should be present at taking the accounts of the estate of the de- ceased partner, and that the partnerehip creditor should not come into competition with the sepa- rate creditors of the deceased partner. Hodgson, III re, Beckett v. Ramsdale, 31 Ch. D. 177 ; 55 L. J., Ch. 241 ; 54 L. T. 222 ; 34 W. E. 127— C. A. A father and son being in partnership, became indebted to the plaintiffs, who were bankers. The son died, and the father brought an action and obtained judgment for the administration of his son's estate. The plaintiffs carried in a claim for the debt against the separate estate, being at the time unable to prove the existence of a partnership, and were declared entitled to a dividend. Afterwards the father died, and the plaintiffs having obtained proof of the partner- ship, brought an action to make his estate liable for the partnership debt : — Held, that the pro- ceedings in the previous action did not constitute a res judicata or estoppel so as to prevent the plaintiffs from recovering the debt ; but they were put under an undertaking to postpone their dividend on the son's separate estate to the claims of his separate creditors. lb. Action hy Joint Creditors for Administration of Separate Estate of Deceased Partner.] — A creditor of a partnership firm brought an ad- ministration action against the executor of a deceased partner. Afterwards a separate credi- tor of the same partner brought an administra- tion action against the executor, and obtained judgment : — Held, on an application by the plaintiff in the first action for the conduct of the proceedings in the second action, that a joint creditor of the firm could not maintain a simple action for the administration of the estate of a deceased partner, and therefore that the first action was not properly constituted. Applica- tion of the plaintiff was consequently refused. McRae, In re, Forster v. Dame,i, Norden v. McRae, 25 Ch. D. 16 ; 53 L. J., Ch. 1132 ; 49 L. T. 544 ; 32 W. E. 304— C. A. See also Bar- nard, In re, ante, col. 1326. Insolvent Estate of Deceased Partner — Joint and Separate Creditors — Surplus Interest — Priority.] — Prior to 1856 A. carried on a bank- ing business in partnership with B. On the 13th March, 1856, A. died. Soon afterwards the bank stopped payment, and B. was adjudicated bank- rupt. Several actions were commenced for the administration of the estate of A. By an order made in the year 1881 and in one of these actions, it was declared that A.'s separate creditors were entitled to be paid out of the estate in priority to his joint creditors, and also that A.'s separate creditors whose debts by law or special contract carried interest, were not entitled to interest in priority to the joint creditors in respect of the principal due to the joint creditors. The joint estate of the banking firm dovro to A.'s death, and the bank assets from that time until B.'s bankruptcy, and also B.'s separate estate, were administered in bankruptcy. The result of the actions to administer A. 's estate was that divi- dends amounting to 20«. in the pound were paid to both the separate and the joint creditors of A. on the principal sums due to them respec- tively, and that a surplus remained which was sufiBcient to satisfy all the interest on the joint as well as the separate debts : — Held, that the separate creditors, whether their debts did or did not by law carry interest, were entitled to take their interest in priority to the joint creditors. Held, also, that the dividends received ought to .be accounted for in ascertaining the amount of interest due, in manner following, viz., by treat- ing the dividends as ordinary payments on account and applying each dividend and the surplus (if any) to the reduction of the principal. WUtting stall v. Graver, 55 L. T. 213 ; 35 W. K. 4— Chitty, J. Embezzlement of Money of " Co-partnership."] — See Beg. v. Bolson, ante, col. 567. 2. Actions. For Administration of Estate.] — See supra. Service of Writ on one Member — ^Appearance by him only " as a Partner of the Firm."] — A writ was issued against a trading partnership (unincorporated), and served upon a member of the firm, who entered an appearance, " W. N., a partner of the firm of W. T. & Co." There was no service upon or appearance by the other members of the firm : — Held, that leave to sign judgment against the firm for default of appear- ance could not be granted. Jaelison v. Litch- field (8 Q. B. D. 474) followed. Adam v. Town- end, 14 Q. B. D. 103— D. ■ Member of Foreign Firm within Juris- diction.] — The defendants, who were a foreign partnership carrying on business out of the jurisdiction, were sued in the name of their firm. One member of the firm happening to be within the jurisdiction was served with the writ, which was the ordinary eight day writ : — Held, that such service was good under Ord. IX. r. 6, which provides that, where persons are sued as partners in the name of their firm, the writ shall be served either upon any one or more of the partners, or at the principal place within the jurisdiction of the business of the partnership upon any person having at the time of service the control or management of the partnership business there. Pollexfen v. Sibson, 16 Q. B. D. 792 ; 55 L. J., Q. B. 294 ; 54 L. T. 297 ; 34 W. K. 534— D. Appearance — By one Partner — Amendment of Judgment so as to include other Partner.] — The appellant issued a writ against E. & (3o. E. alone appeared, and all subsequent proceedings in the action were conducted under the title of M. V. B., sued as E. & Co. When the action came on for trial the appellant had a verdict by consent, and judgment was signed against E. sued as E. & Co. The appellant afterwards dis- covered that the respondent was a member of the firm of E. & Co., and applied for an order to amend the judgment in accordance with the writ, making it a judgment against the firm of E. & Co. : — Held, that at the stage of the action the amendment should not be allowed. Mwnster V. Cox, 10 App. Cas. 680 ; 55 L. J., Q. B. 108 ; 53 L. T. 474 ; 34 W. E. 461— H. L. (B.). Amending Defect in — Appearance of Partners in Name of Firm.] — A writ having 1331 PAETNEESHIP— Partwers inter se. 1332 been issued against a firm and others, was served on one defendant, F., in his individual capacity as a defendant, and also as representing both a co-defendant, G., and the firm (of which he, F., was supposed to be a member). F. was not, in fact, a partner in the firm, nor did he in any way represent either it or G. for the purposes of ser- vice. The firm entered a conditional appearance and moved to discharge the service as against them : — Held, that the defect in the firm's ap- pearance, by reason of their not having appeared individually in their own names, could be cured by an undertaldng of the partners so to appear ; that upon this being done the service must be discharged as against G., he being easily acces- sible, and there being no need for prompt service. Nelson v. Pastorvno, 49 L. T. 564— Pearson, J. Discovery — Sealing-up Entries in Books — Sur- vivingf Partner. ] — The defendant and W. P. were partners. W. P. died and appointed the defen- dant his executor. In an action by a person interested under W. P.'s will against the defen- dant a decree was made for administration of W. P.'s estate, and for taking accounts of the partnership as between the defendant as sur- viving partner and W. P.'s estate. An order having been made for the production of the partnership books by the defendant, he claimed to seal up such entries as related to his own private affairs : — Held, that inasmuch as the plaintifE and defendant were both interested in the partnership property, the defendant was not entitled to the ordinary power to seal up such entries as he might sivear to be irrelevant to the matters at issue in the action, but only to seal up entries which related to certain specified private matters mentioned in the order. Picher- ing V. Pwltering, 25 Oh. D. 247 ; 53 L. J., Ch. 550 ; 50 L. T. 131 ; 32 W. E. 511— C. A. Judgment against one Partner for Partnership Deht — Action against other Partners for Price tarred.] — An unsatisfied judgment against one joint contractor on a bill of exchange, given by him alone for the joint debt, is a bar to an action against the other joint contractor on the original contract. The plaintiffs sold goods to a partner- ship consisting of the defendant and W. After the sale the partnership was dissolved. The plaintiffs, who were not aware of the dissolution, drew bills for the price of the goods, which were accepted by W. in the partnership name. The plaintiffs sued W. in the partnership name on the bills, and recovered judgment, which was not satisfied. The plaintiffs afterwards sued the defendant for the price of the goods :— Held, that the case was within the principle of Kendall v. Hamiltoji (4 App. Cas. 504), and the judgment against W. on the bills was an answer to the action.^ Bralie v. Mitcluill (3 Bast, 251) dis- tinguished. Caminfort v. Chapman, 19 Q. B. D. 229 ; 56 L. J., Q. B. 639 ; 57 L. T. 625 ; 35 W. E. 838 ; 51 J. P. 455— D. Op. Hodgson, In re, ante, col. 1329. Effect of Execution for Separate Debt — Sale by Sheriff of Debtor's Interest to other Partner.] — During the temporary unsoundness of mind of the plaintiff, who was a partner with the defen- dant, the sheriff levied execution against his " chattel interest " in the partnership upon three judgments which had been obtained against him. At a sale by auction by the sheriff, the defen- dant himself bought the interest for a sum very much below its actual value, and an assignment of the interest was executed by the sheriff to the defendant. The purchase-money was paid to the sheriff by a cheque drawn by the defendant on the partnership banking account, and the amount was debited to the plaintiff in the partnership books. The plaintiff on recovering his health brought an action to set aside the sale on the ground of undervalue and undue ad- vantage, for a declaration that the partnership was still subsisting, for a dissolution, and for the usual accounts : — Held, that the purchase was void and must be set aside ; and that under the circumstances of the present case there was no dissolution of the partnership by the seizure and sale. Helmore v. Smitli, 35 Oh. D. 436 ; 56 L. T. 535 ; 36 W. E. 3— C. A. Whether a sale by the sheriff of a partner's interest to his co-partner causes a dissolution, if the co-partner purchases with his own money, qusere. It. III. EIGHTS AND LIABILITIES OF PAET- NEES BETWEEN THEMSELYES. 1. Gbnekallt. Contract induced by Misrepresentation — Rescission — Eestitntio in Integrum.] — The respondent was induced by misrepresentations made without fraud by the appellants to become a partner in a business which either belonged to them or in which they were partners and which was in fact insolvent. The business having afterwards, owing to its own inherent vice, entirely failed with large liabilities : — . Held, that the respondent was entitled to rescis- sion of the contract and repayment of his capital, though the business which he restored to the appellants was worse than worthless, and that the contract being rescinded the appellants could not recover against him for money lent and goods sold by them to the partnership. Adams v. Newbigging, 13 App. Cas. 308; 57 L. J., Ch. 1066 ; 59 L. T. 267 : 37 W. E. 97— H. L. (E.). Continuance of Partnership after Expiration of Term — Stay of Proceedings.] — ^A partnership was continued after the expiration of the term specified in the articles of partnership. The articles contained an arbitration clause, pro- viding, in effect, that all disputes or questions' respecting the partnership affairs, or the con- struction of the articles, should be referred to arbitration. There were also clauses providing for the purchasing by the continuing partners of the share of a deceased partner. An action was brought by the executors of a deceased partner against the surviving partner for the winding-up of the partnership. The defendant moved for a stay of proceedings and a reference of the matters in difference between the parties to arbitration. One of the questions was whether it was for the court or for the arbi- trators to determine which of the clauses in the articles, and in particular whether the purchasing clauses, applied to the partnership so carried on after the expiration of the term : — Held, that it was for the arbitrators, and not for the court, 1333 PAETNEESHIP— Partners inter se. 1334 to determine which of the articles applied ; and that a stay of proceedings must be directed, and a reference of all matters in difEerence to arbi- tration. Cope V. Cope, 52 L. T. 607 — Kay, J. Expiration of Term — Continuance without Fresh Articles — Operation of Old.] — When the members of a mercantile firm continue to trade as partners after the expiration of the term limited by the partnership articles, without making any new agreement, the original con- tract is prolonged by tacit consent, and all its conditions remain in force, except in so far as they are inconsistent with any implied term of the renewed contract. An implied term of such a new contract is that each partner has the right, when acting bon§, fide and not for the purpose of obtaining an undue advantage, instantly to determine the partnership. Xeilson t. Mossend Iron Company, 11 App. Gas. 298 — H. L. (Sc.) A clause of a contract of co-partnership pro- Tided that " If three months before the termina- tion of this contract, the whole of the partners of the company shall not have agreed to carry on the business thereof, any one or more of them who may be desirous of retiring shall be entitled to do so, and shall immediately, on the completion of the balance after-mentioned, be paid out, by the partners electing to continue the business, his share in the concern, as the same shall be ascer- tained by a balance of the company's books, as at the termination of the contract to be com- pleted, within not more than three months from said termination ; but if aU the partners wish, the property and assets of the co-partnery shall be disposed of as follows : — It shall be competent for any one of the partners, for himself or for any one or more of them together, to give in offers for the same as a going concern, and the highest offerer is to be held to be the purchaser ; and in case only one offer was made, the party making it was to be the purchaser, at such a price as shall be mutually agreed, and in case no offer was made, then the said property and assets shall • be realised in such manner as shall be mutually agreed upon, or as shall be fixed by the arbiter named." The business was carried on after the term limited by the contract of co-partnery had expired, without any new agreement : — Held, that this clause had no longer any applica- tion ; and that each partner was at libei-ty to determine the whole partnership whenever he thought proper. Ih. Death of Partner — Provision that Executors shall stand in his Place — Bights and Obligations of Executors and Surviving Partners.] — Partner- ship articles provided that the partnership should last for a term of fifteen years, and that in case any of the partners should die during the continuance of the partnership, his executors or administrators should succeed to his share, and be and become partners in his place, and in respect of his share : — -Held, that the court would not, on the death of a partner, force the executors to become partners against theii will ; and, if they declined to come in, the partnership must . , '; be treated as dissolved from the death of the , , deceased partner, and wound up on that footing ; - but the judgment must contain a provision, as in :] ij I Doivns V. Collins (6 Ha. 418), reserving to the surviving partners the right to prosecute against the estate of the deceased any remedy which they might have in respect of any alleged breach of the covenant contained in the articles. Zmi- castc-r V. Allsup, 57 L. T. 53— Stirling, J. Covenant to pay Annuity for Benefit of Widow of Deceased Partner.] — Articles of part- nership between two solicitors provided that the partnership should be for the term of ten years from the 1st of May, 1875, if both the partners should so long live. The partnership was also made determinable by notice. There was a further provision that from the determination of the partnership the retiring partner, his executors or administrators, or the executors or adminis- trators of the deceased partner, should be entitled to receive out of the net profits of the partner- ship business, during so much (if any) of the term of five years from the 1st of May, 1880, as- should remain after the determination of the partnership, the yearly sum of 350?., and dui-ing so much (if any) of the term of five years from the 1st of May, 1885, as either the retiring partner, or ", widow of the retiring or deceased partner, should be living, the yearly sum of 250Z., any sum which might under this provision for the time being become payable to the executors or administrators of a deceased partner to be applied in such manner as such partner should by deed or will direct for the benefit of his widow and children, and in default of such direction to be paid to such widow, if living, for her own benefit. It was further provided that the annuity should, so far as legally might be, be constituted a charge on the net profits of the business. One of the partners died in 1883, leaving a widow, but without having given any direction as to the application of the annuity. By his will he appointed his widow his universal legatee and sole executrix. He died insolvent, and an action was brought by a creditor to administer his estate : — Held, that the annuity did not form part of the testator's estate, but that by the articles a trust of it was created in favour of the widow, and that she was entitled to it free from the claims of the testator's creditors. Flavcll, In re, Murray v. Flavell, 25 Oh. D. 89 ; 53 L. J., Ch. 185 ; 49 L. T. 690 ; 32 W. K. 102— —0. A. Power of One Partner to Increase Capital.] — In 1874 the plaintiff H. entered into partner- ship in a business, to be carried on at premises be- longing to the defendant F. in K. Street, Dublin, with the defendants F., K. and M., who had previously carried on a similar business together as " F. & Co." in T. street, in the same city. The capital of the new partnership, which was to be managed by H., was to be 10,000Z., of which H. was to bring in 2,000Z., and the other partners the remaining 8,000Z. out of the partner- ship assets of "F. & Co." H. only brought in 800Z. at first, but with the consent of his co-partners, allowed his profits in the concern to accumulate to 1,200Z., and remain as capital therein. The partnership deed provided that the partners should advance the necessary capital in the proportion of their respective shares (as specified) of the profits, and that any partner advancing, with the consent of the others, more than his share, should be entitled to interest on such advance ; that each partner might from time to time withdraw the amount of surplus capital ; that F. might at any time introduce a new partner subject to relinquishing in his favour a proportionate part of the profits, and 1335 PARTNEESHIP— Partners inter se. 1336 that on a dissolution of the partnership its assets should, at F.'s election, become his propertj', on his paying for the same their value, with a sum equal to the profits gained during the year. The defendants throughout treated the K. street con- cern as a branch to T. street. At the close of the stock-taking period up to June, 1882, the plaintiff's capital in the K. street concern amounted to 5,600L, and he called on the de- fendants to pay him the surplus of 3,600^. They paid him IfiOOl., and refused to allow him to withdraw any more, and H. then brought an action for dissolution of the partnership. The defendants alleged that F., in pursuance of his power in the deed, had in 1879 introduced a new partner into the K. street concern, who brought in 5,0001. capital, and that thereupon F. raised the capital of the firm from 10,0002. to 17,5002., and the plaintiff's capital from 2,0002. to 3,5002. with his consent, and they offered to submit the matters in dispute to arbitration, pursuant to a clause in the partnership deed : — Held, that F. had no right to use his power of increasing the capital, as he had done, for the purpose of resisting the plaintiff's demand for a return of his surplus capital, and that the plaintiff was entitled to a dissolution, the accounts being taken between the parties on the basis of the clause in the partnership deed providing for the event of dissolution, although the dissolution was taking place under the order of the com-t, and not in pursuance of the provision of the deed. Heslin v. I'ay, 15 L. K., Ir. 431— C. A. Dissolution — No Arrangement as to Goodwill — Eight to Firm Name.] — A firm of solicitors consisting of three partners, carried on business under the style of " Chappell, Sou, & Griffith." The senior partner having died, the business was continued by the son and the junior partner under the same style for upwards of three years. The partnership was then dissolved, an agreement being executed providing for the dissolution, but containing no reference to the goodwill of the business or the sale or disposal thereof. After the. dissolution, the business of a solicitor was carried on by Chappell, the Sou, on the premises held by the original fii-m under the style of " Chappell & Son." Griffith, having taken offices a few doors off, also carried on the business of a solicitor, under the style of " Chappell & Griffith." To this Chappell ob- jected, and having commenced an action to restrain Griffith from carrying on business under the style referred to, moved for an interim injunction. It was proved that immediately before the dissolution of the partnership, Griffith had written to Chappell, stating that he in- tended to carry on business under the style of " Chappell & Griffith," and making suggestions as to the style Chappell should adopt. Circulars were also forwarded by Griffith to all the clients of the old firm, informing them that he proposed to carry on the business of a solicitor by himself, and stating the style that he intended to adopt : ■ — Held, that the prim4 facie right of the defen- dant was to use the name of the old firm, no arrangement having been made as to the good- will of the business ; and from the nature of the business and from the fact that the style of the original firm had been used with a variation, there was practically no risk that the plaintiff would be exposed to injury by what the defen- dant was doing ; and that, therefore, no case had been made for the intermediate interference of the court. Chappell v. Griffith, 53 L. T. 459 ; 50 J. P. 86— Kay, J. See also GOODWILL. Joint and Several Agreement — ^Agree- ment not to carry on the Profession of a Surgeon.] — M. became assistant to H. and P., surgeons at N., and entered into a bond which recited that he was taken into their employment on the terms" that he should not at anytime set up or carry on the business or profession of a surgeon " in N., or within ten miles thereof. The condition of the bond was that M. " shall not at any time hereafter directly or indirectly, and either alone or in partnership with or as assis- tant to any other person or persons, carry on the profession or business of a surgeon " in If. or within ten miles thereof. The partnership hav- ing been dissolved, both partners continued to practice in N., and H. engaged M. as his assis- tant at a salary. P. brought his action to re- strain M. from acting as such: — Held, that as the agreement recited in a bond was for the protection of the business carried on by H. and P., and they had in the business a joint interest during the partnership, and several interests in the event of a dissolution, the agreement must be taken to be several as well as joint, and that P. could sue alone for a breach of it : — Held, also, that there had been a breach of it, for that a person acting as a surgeon was carrying on the profession of a surgeon, although he only acted as salaried assistant to a surgeon who carried it on for his own benefit. Allen v. Taylor (19 W. E. 556) distinguished. Palmer v. Mallet, 36 Ch. D. 41 1 ; 57 L. J., Ch. 226 ; 58 L. T. 64 ; 36 W. E. 460— C. A. Accretion to Capital — Distribution of Surplus Assets — Lien.] — Where in keeping their accounts partners had treated their respective shares of the declared or estimated profits of each year as accretions to their respec- tive capitals : — Held, that the profits of the year ending with the dissolution of the firm could not be so treated ; and further, that the surplus assets should be distributed by paying to each partner his claims in respect of capital standing to his credit at the dissolution. The residue or deficiency will be profits or losses, in either case divisible in the agreed proportions. The rate- able application of the surplus assets in payment of capital claims must be subject to the liability to contribution to make up a deficiency, and to the claim of any of the partners against the en- tire assets to answer it. Binney v. Mutrie, 12 App. Cas. 160 ; 36 W. E. 129— P. C. Effect of Seizure and Sale,] — See Ed- more V. Smith, ante, col. 1332. Winding up — Receiver and Manager — Ke- muneration.J — Areceiver and manager appointed by persons formerly partners to wind up their business is, in the absence of express stipulation, entitled to a, quantum meruit, and not to re- muneration according to the scale laid down for official receivers, nor under the 5 per cent, rule mentioned in JDay v. Croft (2 Beav. 488), which no longer exists. Prior v. Bagster, 57 L. T. 760— Stirling, J. 1337 PATENT. 1338 2. Jurisdiction of Courts over. Befusal to Sign Ifotice for Insertion in the Gazette — Action to Compel.]— The court has iurisdiction to compel a retiring partner to sign a notice of dissolution for the Gazette in an action in which no other specified relief is claimed. Hendry v. Ttti-ncr, 32 Ch. D. 355 ; 55 L. J., Ch. 562 ; 54 L. T. 293 ; 34 W. E. 513— Kay, J. Freminm-^Supplemental Belief— Adding In- quiry after Judgment.] — Where a plaintiff, who entered into a partnership for a long term of years, and paid a premium, of which, in certain events, that did not happen, he was to have a proportion returned to him, obtained judgment for a dissolution and an order for accounts and inquiries, and after the accounts had been prose- cuted, asked by summons for a direction that he was entitled to be credited with a sum as for return of premium. The court held, that though it had power to make an addition to the judg- ment, yet, as the plaintiff knew all the facts at the time when it was pronounced, had present to his mind the question whether he was or not entitled to any such return, and came to the conclusion that he was not, this was not a case in which the relief asked for should be granted, and dismissed the summons with costs. Edmonds V. RoUnson, 29 Ch. D. 170 ; 54 L. J., Ch. 586 ; 32 L. T. 339 ; 33 "W. R. 471— Kay, J. In partnership cases relief is given by directing a return of premium as for partial failure of the consideration, but such relief ought not to be granted without the leave of the court, after decree made declaring tbe partnership dissolved, and directing the usual accounts to be taken ; and leave ought not to be given unless the cir- cumstances are such as would have authorised the court to give leave to bring a supplemental action. li. Form of Order — Sale of Assets.] — In an action for the dissolution of a partnership an order by consent was asked for, including, amongst other inquiries, an inquiry " in what manner and upon what terms and conditions the partnership assets might be sold most beneficially for all parties ' interested therein : " — Held, that the proper order was for sale of the assets with the judge's approbation. Class v. MargUall, 33 W. E. 409 —North, J. In an action for the dissolution of a partner- [, ship an order by consent was asked for, includ- ing, amongst other inquiries, an inquiry "in what manner and upon what terms and condi- ! tions the partnership assets might be sold most beneficially for all parties interested therein " : — ^Held, that to sanction that form of inquiry might cause unnecessary expense, and that the proper form of order was a direction that the assets should be sold or otherwise disposed of with the approbation of the judge. Page v. JJ Slade, 54 L. J., Ch. 1131 ; 52 L. T. 961 ; 33 W. E. 701— Chitty, J. Beceiver and Kanager — Sale of Business.] — " The court has jurisdiction to appoint a receiver ■ _ and manager of a partnership business with a j« view to selling the business as a going concern, I ' notwithstanding that the partnership has expired i; in pursuance of the provisions to that effect con- \l tained in the partnership deed. Tayloi' v. Neate, 39 Ch. D. 538 ; 57 L. J., Ch. 1044 ; 60 L. T. 179 ; 37 W. E. 190— Chitty, J. Interference with— Circular containing Libel on Business.] — A libel on the business carried on by a receiver and manager appointed by the court is a contempt of court, and may be punished by committal of the offender. After the coui-t had made an order appointing a receiver and manager of a business, a former clerk of the firm sent round a circular to the customers of the firm containing an unfair statement of the effect of the order, and soliciting their custom for his own business. As he declined to give an undertaking not to repeat the offence, the judge committed him to prison for contempt of court, and the committal was upheld by the Court of Appeal. Selmorc v. Smith, 35 Ch. D. 449 ; 56 L. J., Ch. 145 ; 56 L. T. 72 ; 35 W. R. 157 — C.A. PARTY-WALLS. Damage to.] — See White v. Pcto, ante, col. 1299. PASSENGER. By Eailway.]— See Carrier— Negligence. By Ships,] — See Shipping. PATENT. I. Foe what Granted, 1338. II. Specification, 1340. III. Infringement. 1. Wliat is, 1343. 2. Practice, 1344. IV. Petition for Revocation, 1350. v. Ebnewal and Prolongation of Let- ters Patent, 1351. VI. Assignment and Licences, 1351. VII. Proceedings to Eestrain Threats. 1. Oenerally, 1352. 2. Tinder s. 32 of the Patents Act, 1883, 1352. I. FOE WHAT GRANTED. Prior Publication— Foreign Treatise— British Museum.] — A French treatise was placed in the British Museum Library in 1863. The museum catalogue is kept with reference to authors' names ; books are arranged according to subject matter ; readers can, under guidance, search for 1839 books on particular subjects : — Held, that there was no prior publication in England of matter contained in the treatise, so as to avoid a patent taken out in 1876. Otto v. Steel, 31 Ch. D. 241 ; 55 L. J., Ch. 196 ; 54 L. T. 157 ; 34 W. E. 289— Pearson, J. Foreign Specification in Patent Office library.] — In December, 1878, and February, 1880, the specifications, in the German language, with drawings, of two patents taken out in Germany, were deposited in the free public library of the Patent Office ; and the journal published periodically by the patent commis- sioners, amongst the list of patents granted in Germany, contained entries of the particular patents, with a note in each case that the speci- fications, as well as the list of applications, might be consulted in the free public library of the office. In April, 1880, a patent was obtained in this country for an iuTention similar to those for which the German patents had been granted : Held, that the fair and legitimate inference from the above facts was, that the public availed themselves of the facilities aflEorded to them for obtaining information as to the inventions, and accordingly that there was sufficient evidence of publication of the German specifications in this country prior to the date of the English patent of 1880 to avoid such patent, and that this inference was not affected by the fact that the prior specifications were in the German language. Plimpton V. Spiller (6 Ch. D. 412) and Otto v. Steel (31 Ch. D. 241) distinguished. Harris v. Rothwell, 35 Ch. D. 416 ; 56 L. J., Ch. 459 ; 56 L. T. 552 ; 35 W. R. 581— C. A. Prim^ facie a patentee is not the first inven- tor, if before the date of his patent an intelli- gible description of his invention, either in English or in any other language commonly known in this country, was known to exist in this country, either in the Patent Office or in any other public library to which persons in search of information on the subject would naturally go for information. But if it be proved that the foreign publication, although in a public library, was not in fact known to be there, the existence of the publication in this country ie not fatal to the patent. IT). Per Cotton and Lindley, L.JJ. The existence of the German specifications in the library of the Patent Office, where they were unreservedly accessible to every one, was in itself conclusive evidence of a prior publica- tion, lb. Per Lopes, L.J. Anticipation.] — The plaintiffs were the paten- tees of an improvement in hydraulic lifts, the novelty of their invention being the introduction of an annular area piston, by the use of which ■they alleged that only that portion of the water which was required for the purpose of raising the ram and cage ran to waste. The defendants had constructed hydraulic lifts which, according to the plaintiffs' allegation, were identical with those of the plaintiffs, except that the constant pressure was a weight which was applied at a different part of the machine. The defendants denied the infringement and the validity of the plaintiffs' patent, alleging that the plaintiffs' invention had been anticipated by an invention of B., the specification of which was ffied a few days before that of the plaintiffs. The principal dissimilarity between the two lifts consisted in PATENT— Speci/icaiioTO. 1340 this — that in the plaintiffs' the balancing was done by water pressure, and in the defendants' by weight applied to the plunger. The court held that the object of the plaintiffs' invention was the economy of water, which was not the object of B.'s invention ; and that, therefore, B.'s invention was not an anticipation of the plain- tiffs' invention, the patent for which was valid ; also, that the patent of the plaintiffs, being for a combination, was infringed by the defendants having taken the essential part of it with a mere mechanical equivalent for the parts not taken ; and that the plaintiffs were entitled to an in- junction ; but held, on appeal, without deciding the question of validity of the plaintiffs' patent on the ground of sufficiency or insufficiency of the specification, that either B. had anticipated everything used in the plaintiffs' patent, or, if there was anything in the plaintiffs' patent which was not in B.'s patent, there had been no infringement. Ellington v. Clarlt, 58 L. T. 818 — C. A. Validity — Chemical Process.] — A patent for procuring colouring matters for dyeing and painting by a chemical process held valid. Badisehe Anilin v,nd Soda Pabrik v. Lemnstein, 12 App. Cas. 710 ; 57 L. T. 853— H. L. (E.). II. SPECIFICATION. Combination — Novelty of Parts.] — Where a patent is taken out for a combination, it is not material to its validity that the specification should point out what parts are old and what are new ; though if an alleged iofringement consists only in taking part of the combination, it is necessary that the patentee should in his specification have claimed the part so taken as new. Neither is it necessary that the patentee should explain the novelty and the merit of the invention. Foxwell v. Sostooli (4 D. J. & S. 298) explained. Proctor v. Bennis, 36 Ch. D. 740 ; 57 L. J., Ch. 11 ; 57 L. T. 662 ; 36 W. B. 456— C. A. Sufficiency — Disclosure,] — ^A patent, dated as to its final specification, May, 1880, claimed an electric lamp with a carbon filament for its illuminating conductor. The patentee took out a subsequent patent, dated as to its provisional specification, December, 1879, for a method of making carbon filaments for electric lamps :— Held, that there had been no such want of dis- closure as to avoid the first patent. Ediion Electric Light Company v. Woodhouse, 32 Ch. D. 520 ; 55 L. J., Ch. 943 ; 55 L. T. 263 ; 34 W. R. 626— Butt, J. "Distinct Statement of the Invention claimed."] — The euactmeutins. 5,snb-s. 6, of the Patents, Designs, and Trade Marks Act, 1883, that a complete specification must end with a distinct statement of the invention claimed, is directory only, and when letters patent have been granted, they will not be invalid because it has not been complied with. Siddell v. Viewers, 39 Ch. D. 92 ; 59 L. T. 575— C. A. Provisional differing from Complete.] — A patent is not rendered invalid by the fact that the complete specification describes something 1341 VATE'NT— Specification. 1342 different from anything specifically referred to in the provisional specification, provided, that what is so described comes within the nature of the invention described in general terms in the provisional specification. lb. All that a patentee need do in his provisional specification is to describe his invention. He need not go on therein to describe any method of carrying out the invention, but, whether he do so or not, if a different or further mode of carrying out the invention is described in his complete specification, that will not invalidate the patent so long as such new method of carry- ing out is fairly within the invention as described in the provisional specification. Woodward v. Sanmm, 56 L. T. 347— C. A. In an action as to the validity of a patent, the plaintiff's patent was impeached on the ground of differences between the provisional and the complete specification : — Held, that the object of the provisional specification was only to describe-" the nature of the invention," pur- suant to s. 8 of 15 & 16 Tict. c. 83 ; that it was the creature of statute, and the object of its in- troduction was to enable the inventor to obtain protection for his invention for six months, during which time he might use and publish his invention without prejudice to any letters patent to be granted for the same ; and that its object was only to describe generally and fairly the nature of the invention, and not to enter into all the minute details of the complete speci- fication. MoseleijY. Victoria Rubier Company^ 57 L. T. 142— Chitty, J. If the patentee, between the time of filing the provisional and the complete specification, discovers any improvement in the manner in which the invention is to be performed, he is not merely at liberty, but is bound to give the public the benefit of his discovery. li. Amendment of — Jurisdiction of Master of the Bolls. ] — The 18th section of the Patents, Designs, and Trade Marks Act, 1883, does not affect the jurisdiction of the Master of the EoUs to allow an amendment in a patent specification which has been filed under ss. 27 and 28 of the Patent Law Amendment Act, 1852, or has otherwise become a record. So long as it is in the Patent Office, and before the patent is sealed, any one applying for an amendment must proceed under s. 18 of the Act of 1883. Gare's Patent, In re, 26 Ch. D. 105— M. E. Fending Action.] — Sect. 1 9 of the Patents, Designs, and Trade Marks Act, 1883, applies to an action for infringement of a patent which was pending at the commencement of the act, namely, the 1st January, 1884, and the court ia any such action has power under that section to give the plaintiff liberty to apply to the patent office for leave to amend his specification by way of disclaimer. Singer v. Hasson, 50 L. T. 326 — D. An action for infringement of a patent after judgment, although an appeal is pending, is not a ', pending action within s. 18, sub-s. 10, of the : Patents, &c.. Act, 1883, so as to exclude an application to the Comptroller under the pre- ceding provisions of s. 18 for leave to amend the I specification by way. of disclaimer. Therefore an application to the court under s. 19 for leave to apply to the Comptroller was refused. Crop- per V. Smith, 28 Ch. D. 148 ; 54 L. J., Ch. 287 ; 52 L. T. 94 ; 33 "W. E. 338— Chitty, J. The words " other legal proceedings " in s. 18, sub-s. 10, refer to a proceeding for the revocation of a patent. Ih, " Pending Legal Proceeding" — Prohibi- tion to Comptroller.]- By s. 18, sub-s. 1, of the Patents, Designs, and Trade Marks Act, 1883, " a patentee may, from time to time, by request in writing left at the Patent Office, seek leave to amend his specification ... by way of disclaimer, correction or explanation . . ." By s. 18, sub-s. 10 : " The foregoing provisions of this section do not apply when and so long as any action for infringe- ment or other legal proceeding in relation to a patent is pending." By s. 19 : "In an action for infringement of a patent and in a proceeding for revocation of a patent the court or a j udge may order that a patentee shall ... be at liberty to apply to the Patent Office for leave to amend his specification byway of disclaimer. . . ." An action having been commenced under s. 32 of the Patents, Designs, and Trade Marks Act, 1883, for an injunction to restrain patentees from issu- ing threats of legal proceedings and for damages, the patentees brought a cross-action for infringe- ment of their patent. The patentees then ap- plied in the cross-action and obtained a judge's order under s. 19 giving them liberty to apply to the Comptroller- General of Patents for leave to amend their specification by way of dis- claimer. Upon an application for a writ of pro- hibition to the Comptroller-General to prevent him from hearing the application upon the order : — Held, that the judge had jurisdiction to make the order notwithstanding that the action under s. 32 had not been concluded, and that the application for a prohibition must be refused. Hall, In re, 21 Q. B. D. 137 ; 57 L. J., Q. B. 494 ; 59 L. T. 37 ; 36 W. R. 892— D. Terms on which Leave Granted.] — On a motion, under o. 19 of the Patents, Designs, and Trade Marks Act, 1883, by the plaintiffs in an action for infringement of their patent dated in 1885, for liberty to apply at the Patent Office for leave to amend their specification by disclaimer, an order was made granting the leave asked for on the following terms, no state- ment of claim or defence having yet been de- livered ; no further proceedings to be taken in the action until the disclaimer had been pro- perly made, and, if so made, the plaintiffs to pay the defendants' party and party costs of the action up to disclaimer ; the plaintiffs to under- take forthwith to take proceedings for disclaimer and then to amend their action by stating the disclaimer, founding the action simply upon the specification as amended. Fusee Vesta Cotk- pany v. Bryant and May, 34 Ch. D. 458 ; 56 L. J., Ch. 187 ; 56 L. T. 110 ; 35 W. E. 267— Kay, J. Where the plaintiff in an action for infringe- ment of a patent asks for leave to apply at the Patent Office to amend his specification by way of disclaimer, the court will as a general rale impose the condition that the amended specifica- tion shall not be receivable in evidence in the action, though in particular cases less stringent terms may be imposed. Srav v. Gardiner, 34 Ch. D. 668 ; 56 L. J., Ch. 497 ;"56 L. T. 292 ; 35 W. E. .341— C. A. In a patent action for infringement, after all 1343 FATEWr— Infringement 1344 the pleadings had been delivered, so that nothing remained to be done but to prepare the evidence for trial, the plaintiffs asked, under s. 19 of the Patents, Designs, and Trade Marks Act, 1883, for liberty to apply for leave to disclaim one of the claims of their specification. The application vpas granted on the following terms : — The plaintiffs to pay in any event the costs of the application, and the costs of action up to and occasioned by the disclaimer, except only so far as the proceed- ings in the action might be utilised for the purposes of the amended action. The plaintiffs and the defendants to be allowed to make all necessary amendments in their pleadings after disclaimer. The plaintiffs to undertake forth- with to amend their pleadings, confining the action to the specification as amended by the disclaimer, or to consent to the action being dismissed with costs. In the event of trial all other questions of costs reserved. Fusee Vesta Company v. Bryant (34 Ch. D. 558) distin- guished. Haslam Foundry and Engineering Company v. Qoodfellow, 37 Ch. D. 118 ; 57 L. J., Ch. 245 ; 57 L. T. 788 ; 36 W. R. 391— Kay, J. Pending an action for infringement of several patents, leave was given to the plaintiffs to apply at the Patent Office to amend one of the specifi- cations by way of disclaimer, and to give the amended specification in evidence at the trial, on the terms of the plaintiffs paying all the costs of the action up to the time of leave being given, and waiving all claim to recover damages for in- fringements prior to the amendment. Gaula/rd V. Lindsay, 38 Ch. D. 38 ; 57 L. J., Ch. 687 ; 52 L. T. 44— C. A. A petition for revocation of a patent which was presented in December, 1886, was set down for hearing as an action with witnesses, and the hearing being imminent in November, 1887, the patentees applied for liberty to apply to amend their specification and a postponement of the hearing. The application was granted upon terms of the applicants prosecuting with dili- gence their proposed application for leave, and paying all costs of the petition up to and includ- ing the application itself. Gaadard S; GiiW Patent In re, 57 L. J., Ch. 209— Kekewioh, J. III. INFEINGEMENT. 1. What is. Impoitatiou and User of Apparatus made Abroad— User for Experiment.] — User of a pirated article for the purpose of experiment and instruction is user for advantage, and an infringement of the patent. The defendant, an English electrician, purchased and imported from foreign manufacturers apparatus which if made here would have infringed the plaintiff's patent. The defendant maintained that he had only purchased the apparatus for examination and experiment by himself and his pupils, as certain royalty-paid instruments in his posses- sion were too expensive to be taken to pieces ; and he insisted that he had never sold, and had never otherwise used the apparatus : — Held, that such user of the pirated apparatus by the defen- dant was a user for advantage and an infringe- ment of the patent. United Teleplione Company V. Sharpies, 29 Ch. D. 164 ; 54 L. J., Ch. 633 ; 52 L. T. 384 ; 33 W. R. 444— Kay, J. Combination.] — A patent for a combination of known mechanical contrivances producing a new result : — Held, to be infringed by a machine producing the same result by a combination of mechanical equivalents of the above contri- vances, with some alterations and omissions, which did not prevent the new machine from being one which took the substance and essence of the patented invention. Curtis v. Piatt (35 L. J., Ch. 852) distinguished. Proctor v. Bennis, infra. FosseBsion of In&inging Machines.] — Defen- dants, a telephone company, contracted with an American agent for the purchase of a number of telephones. These machines, known as Blake transmitters, having been accordingly made in America, were sent to this country, and came into the possession of the defendants, who kept them unused in a warehouse. The Blake transmitters were protected by English and American patents. The plaintiffs, another tele- phone company, having in the meantime ob- tained an assignment of Blake's English patent, brought an action for infringement, claiming an injunction and delivery up of tie machines. Defendants dismantled the machines by taking out the Blake elements, and kept the separate parts stored in a warehouse : — Held, that the possession of the machines by the defendants was an infringement of the plaintiffs' patent rights, and injunction granted ; the court refusing to order the destruction or the delivery up of the infringing machines. United Telephone Com- pany V. London and Globe Telephone and Main- tenance Company, 26 Ch. D. 766 ; 53 L. J.. Ch. 1158 ; 51 L. T. 187 ; 32 W. R. 870— V.-C. B'. Sale of Component Farts of Infringing Ma- chine.] — Semble, that an injunction granted to restrain the sale of a complete machine, the subject of a patent, will be violated by a sale of the component parts of the machine in such a way that they can easily be put together by any- one. United Telephone Company v. Bale, 25 Ch. D. 778 ; 53 L. J., Ch. 295— Pearson, J. 2. Pkactice. Acqniescence — Estoppel.] — In an action by P., a. patentee for infringement against persons who had bought machines from B., it was proved that P. had asked the purchasers to try his machine, saying that it was a better machine than B.'s, but gave no intimation that he con- sidered B.'s machine an infringement of his patent, though he admitted that at the time he did consider it to be so : — Held, that as the pur- chasers did not depose that when they bought B.'s machines they were ignorant of P.'s patent, nor was there any reason to believe that they were ignorant of it, or that P. supposed them to be so ; P. had not on the ground of acquiescence, or estoppel, lost his right to sue them for an infringement in using B.'s machines, it not being the duty of a patentee to warn persons that what they are doing is an infringement, and P.'s con- duct not amounting to a representation that it was not an infringement. Proctor v. Bennis, 36 Ch. D. 740 ; 57 L. J., Ch. 11 ; 57 L. T. 662 ; 37 W. R. 456— C. A. Inspection of Frocess carried on under 1345 'PATE1. Valuation List and Appeal. Power to Amend— Notice of Objection.]— Under the Union Assessment Committee Amend- ment Act, 1864, 27 & 28 Vict. c. 89, s. 1,— which enables the assessment committee to hear objec- tions against ■-, valuation list approved by the committee, and to amend such list, " after notice given at any time in the manner prescribed by 25 and 26 Vict. c. 103, with respect to objections," — an amendment of the list is valid, although no notice of the meeting of the committee was given to the overseers of the parish to which the list relates as required by 1381 POOR LAW — Settlement and Removal of Paupers. 1882 25 and 26 Vict. o. 103, s. 19. Reg. v. ZangrivilU Overseers, or Copping Syke Overseers, 14 Q. B. D. 83 ; 54 L. J., Q. B. 124 ; 52 L. T. 253 ; 33 W. E. 213 ; 49 J. P. 54— D. Objection made before Kate — Second Objec- tion unnecessary — Appeal against second Rate.] — A person who has onoe given to the assess- ment committee notice of objection against a valuation list and failed to obtain such relief as he deems just, may appeal to quarter sessions against any subsequent poor-rate made in con- formity with the list, and 27 and 28 Vict. c. 39, s. 1, does not make it a condition precedent of such appeal that previously thereto he should repeat his application to the committee for relief. Sea. V. Denbighshire Justices, 15 Q. B. D. 451 ; 54 L. J., M. C. 142 ; 53 L. T. 389 ; 33 W. E. 784 — D. Ketropolis Valuation Act, 1869 — Supplemental List.] — See Metropolis, II. 2. Appeal — Arbitration — - Special Case.] — A special case stated by an arbitrator upon an appeal against an assessment to poor-rates set out two alternative modes, neither contrary to law, for ascertaining the value of the tenements assessed : — Held, that the arbitrator must find the facts affirmatively, and not in the alternative. Case remitted to be re-stated. North and South Western Junction Railway v. Brentford Union, 13 App. Cas. 592 ; 58 L. J., M. 0. 95 ; 60 L. T. 274— H. L. (E.). III. S£ITLEM£NT AND BEMOVAI, OF PATTFEBS. Derivative Settlement — Illegitimate Child under Sixteen.] — Under the Divided Parishes Act, 1876 (39 & 40 Vict. c. 61), an illegitimate chUd under sixteen does not take the settlement of its mother, where such settlement has been derived from the mother's father, but such child is remitted to its birth settlement. Reg. or Wyeombe Union v. Ma/rylehone Cfuardians, 13 Q. B. D. 15 ; 53 L. J., M. C. 38 ; 50 L. T. 442 ; 48 J. P. 566—0. A. Af&rming 31 W. E. 916— D. No Settlement acquired by Father or mother,] — Where neither the father nor mother of a pauper child has acquired a settlement in his or her own right, and after the father has died the widowed mother has deserted such child, who is under the age of sixteen, and. has not acquired a settlement for itself, such child is, by 39 & 40 Vict. c. 61, s. 35, to be deemed to be settled in the parish in which it was born, and an order for its removal to a parish in which it was not bom, but in which its father was bom, was quashed, because, in that case, it could not be shown what settlement such child derived from its father or mother without in- quiring into the derivative settlement of such parent, which was prohibited by that section. Reg. or Beadington Union v. St. Olav^s Union, 13 Q. B. D. 293 ; 53 L. J., M. C. 91 ; 50 L. T. 444 ; 32 W. E. 738 ; 48 J. P. 647— C. A. Widow and Children — Birth Settlement of Father.] — Upon appeal against an order for the removal of a widow and her three children, it appeared that the vridow had acquired no settle- ment since her husband's death. Her husband, the father of her three children, was born in the appellant parish, bat never acquired a settlement for himself, and there was no evidence as to the settlement of his parents ; — Held, that under 39 & 40 Vict. c. 61, s. 35, the children took a settlement from their father in the appellant parish, and that the order for their removal was right. Liverpool Guardians v. PoHsea Over- seers, 12 Q. B. D. 303 ; 53 L. J., M. C. 58 j 50 L. T. 296 ; 32 W. E. 494 ; 48 J. P. 406— D. From Father — Child over Sixteen at Date of Inquiry.] — A legitimate child left the parish of his birth, and went with his father into another parish, where the father resided and acquired a settlement while the child was under sixteen, and where the child resided with his father until he was over sixteen. Afterwards they left that parish, and the child became chargeable as a pauper. On appeal against an order adjudging the pauper to be settled in the parish of his birth : — Held, that the pauper while under the age of sixteen had acquired a derivative settlement from his father in the parish in which they had resided, and that, not having afterwards acquired any other settlement, he retained such derivative settlement, and therefore the order must be quashed. St. Paneras Chiardians v. Norwich Guardians, 18 Q. B. D. 521 ; 56 L. J., M. 0. 37 ; 56 L. T. 311 ; 35 W. E. 547 ; 51 J. P. 343— D. On an inquiry into the settlement of a pauper it appeared that she resided with her father till his death, and then, in the same parish, with her mother, who married again before the pauper arrived at the age of sixteen. After she attained that age the pauper continued to reside in the same parish with her mother and stepfather for two years and eight months, when she became chargeable. She was at that time and always had been physically incapable of work : — Held, that the effect of s. 35 of the Divided Parishes Act, 1876, is that every child on attaining the age of sixteen is for the purposes of settlement emancipated, and capable of acquiring a settlement, but that the pauper could not while under sixteen " reside " for any part of the period required for a settlement by residence under s. 34, and that as any settle- ment acquired by the mother on re-marriage was not communicated to the pauper, and she had not resided after attaining sixteen for three years, so as to acquire a settlement by residence under s. 34, she still retained the derivative settlement she had taken from her father while under that age. Highworth and Swindon Union V. Westiury-on-Severn Union, 20 Q. B. D. 597 ; 57 L. J., M. C. 33 ; 58 L. T. 839 ; 36 W. E. 422 ; 52 J. P. 325-C. A. Eeversed "W.N.. 1889, p. 167 — H. L. (E.). Since 39 & 40 Vict. c. 61 (Divided Parishes Act, 1876), s. 35, enacting that " no person shall be deemed to have derived a settlement from any other person. .... except .... in the case of a child under the age of sixteen, which child shall take the settlement of its father .... up to that age and shall retain the settlement so taken until it shall acquire another," paupers who are above the age of sixteen at the time of the inquiry as to their settlement cannot take the settlement of their father. Reg. or Edmon- ton Chiardians v. St. Mary, Islington, Guardians, 15 Q. B. D. 339 : 54 L. J., M. C. 146— C. A. Afflrm- T T 2 1383 POOR LAW — Settlement and Removal of Paupers. 1384 ing 15 Q. B. D. 95 ; 54 L. J., M. C. 110 ; 53 L. T. 327 ; 49 J. P. 804— D. A female pauper had married when above the age of sixteen, and had been deserted by her husband, who never had a settlement : she had never acquired a settlement of her own : — Held, that the pauper retained the derivative settle- ment which she had taken from her father while under the age of sixteen. Guardians of Ed- monton V. Guardians of St. Mary, Islington (15 Q. B. D. 95, 389), overruled. Dorchester Union V. Poplar Union, 21 Q. B. D. 88 ; 57 L. J., M. 0. 78 ; 59 L. T. 687 ; 36 W. E. 706 ; 52 J. P. 435 ; — C. A. "Widowed Motlier."] — A pauper under the age of sixteen, whose father, was dead and whose mother had married again without having acquired a settlement for herself during her widowhood, became chargeable to the respondent union, and an order was made for her removal into the appellant union, in which her mother had been born : — Held, that the order was bad ; that at the time of the making of the order of removal the pauper had no " widowed mother " within the meaning of a. 35 of the Divided Parishes Act, 1876, whose settlement she could take, and that the pauper took her own birth settlement. Amersham Union v. City of London Union, 20 Q. B. D. 103 ; 57 L. J., M. C. 6 ; 58 L. T. 83 ; 36 W. E. 141 ; 52 J. P. 404— D. " Wife " not including Widow.] — Upon appeal against an order for the removal of a widow, it appeared that her husband was settled in a parish in the appellant union at the time of his death, and that she had acquired no settlement since his death : — Held, that the term ' ' wife " in 39 & 40 Vict. c. 61, s. 35, did not include a widow ; that the pauper did not therefore take the settlement of her deceased husband, and that the order for removal must be quashed. Maidstone Union v. Solborn Union, 17 Q. B. D. 817 ; 56 L. J., M. G. 91 ; 51 J. P. 54— D. A widow and her legitimate children, under the age of sixteen, became chargeable to the respondent parish, and an order was made for their removal into the appellant union, where the deceased husband and father had been set- tled : — Held, that the word " wife " in s. 35 of the Divided Parishes Act, 1876, does not include a widow, and, therefore, as the widow's settle- ment became the subject of inquiry after her husband's death, she did not take his settlement, and that under the words " shall take the settle- ment of its father, or of its widowed mother, as the case may be," the children took their mother's birth settlement, and, therefore, the order must be quashed. Maidstone Union v. Solborn Union (supra), approved and followed. Kingsiridge Union v. Hast Stonehouse Guar- dians, 18 Q. B. D. 528 ; 56 L. J., M. C. 83 ; 56 L. T. 333 ; 35 W. E. 580 ; 51 J. P. 470— D. A pauper under the age of sixteen, whose father was dead, and whose mother resided abroad, having become chargeable to a parish in the respondent union, an order was made for her removal into the appellant union, where her deceased father had during his lifetime acquired a settlement : — Held, that the order was bad ; that the language of s. 35 of the Divided Parishes Act, 1876, is to be interpreted with reference to the moment of adjudication upon the application for an order of removal ; that the word " wife " in that section therefore does not include a widow, and that under the words " shall take the settlement of its father, or of its widowed mother, as the case may be," the pauper took her mother's birth settlement, as being the settlement of her surviving parent at the moment of adjudication. Maidstone Union v. Holhorn Union (supra), and Kingsiridge Union V. East Stonehouse Guardians (supra), dis- cussed and approved. Oroydon, Union v. Reigate Union, 19 Q. B. D. 385 ; 56 L. J., M. C. 93 ; 57 L. T. 917 ; 35 \V. E. 824 ; 51 J. P. 724— C. A. Eeversed W. N., 1889, p. 167— H. L. (E.). Besidence as Wife and Widow.] — A pauper had resided with her husband in a parish con- tinuously for upwards of three years, and con- tinued after her husband's death to reside as a widow in the same parish for three months : — Held, that the pauper had by such residence gained a settlement in the parish under s. 34 of the Divided Parishes Act, 1876. Medway Union V. Bedminster Union, 21 Q. B. D. 278 ; 57 L. J., M. C. 129 : 36 W. E. 851 ; 52 J. P. 788 — C. A. AflBrming 58 L. T. 414— D. Affirmed W. N., 1889, p. 167— H. L. (E.). S. P. BoA^on Regis Guardians v. St. Pancras, 57 L. J., M. 0. 6, n.— D. " Residence " — Pauper a Sailor ^ Constant Absence — Birth Settlement.] — A pauper, who was born in the appellant union, from 1876 up to the time of his application for relief was a sailor in the merchant navy, serving on board different ships and on different voyages. Between the different voyages he always returned to his mother's house in the respondent union, remain- ing there on an average for four or five weeks in each year. In 1881 he also obtained jobs on shore, which lasted about three months, during which time he came to his mother's house in the respondent union from Saturday to Monday in each week. When away he invariably left some of his effects at her house, and also brought to her a portion of his earnings as a contribution towards the expenses of the house, but he had no separate room there. In 1883 the pauper became blind, returned to his mother's house, and sought parish relief. The justices made an order that he was settled in the appellant union, and directed that he should be removed there : — Held, that the facts disclosed did not estabhsh that the pauper had ever resided in the Merthyr Tydvil union, within the meaning of 39 & 40 Vict. c. 61, s. 34, or that he had ever been there otherwise than as a visitor. Reg. or Merthyr Union V. Stepney Union. 54 L. J., M. C. 12 ; 52 L. T. 959 ; 49 J. P. 164— C. A. Children under Seven — Besiding away from Father.] — Upon appeal from an order of removal it appeared that seven years before the order the pauper children, then under seven years of age, were, on the death of their mother, placed by their father in the care of K., who resided at Chertsey, Surrey, and lived with him from that time continuously until they became chargeable. There was no evidence as to their residence before they went to Chertsey. The children were visited by their father on three occasions only after they went to Chertsey, and then onlyfor a few hours at a time, but he made a weekly payment for their maintenance, which was continued till his death, six years after- 1385 POOR LAW — Maintenance and Relief of Paupers. 1386 wards. The children never visited their father : — Held, that there was evidence on which the justices might find, as they must be taken to have done, that the father had never given up the intention that his children should return to him when he was in a position to receive them. Holiorn Union v. Chertsey JJiiion, 15 Q. B. D. 76 ; 54 L. J., M. C. 137 ; 53 L. T. 656 ; 33 W. E. 698 ; 50 J. P. 36— C. A. Term of Three Tears — Irromovahility.] — In order that a settlement by residence may be acquired under s. 34 of the Divided Parishes Act, 1876, there must have been a residence of three consecutive years under such conditions in each of such years as would have created a status of irremovability. Dorchester Union v. Weyinoutli Union, 16 Q. B. D. 31 ; 55 L. J., M. C. 44 ; 54 L. T. 52 ; 50 J. P. 310— D. Break of Besidence.] — The pauper was employed from November, 1873, to July, 1878, as an indoor resident nurse at an infirmary in M. She was under the authority of the lady superin- tendent of nurses in the infirmary, and was bound by the terms of her agreement to under- take any duties that might be assigned to her either as an hospital or a private nurse. For five months in 1876, and for three months in 1877, she acted, under the orders of the lady superin- tendent, as a nurse at a branch establishment out of M., returning to the infirmary as soon as her duties ceased at the branch establishment. During this absence her wages were paid from the head institution at M., and the greater part of her effects during the first period of absence was left behind her in her box in the dormitory at the infirmary, to which place she went from time to time for change of clothing as required : — Held, that the absence of the pauper for the two periods did not amount to a break of residence, and that she had gained a settlement in M. by three years' residence within the meaning of 39 & 40 Vict. c. 61, s. 34. Manchester Overseers v. OrmsUrk Guardians, 16 Q. B. D. 723 ; 54 L. T. 573 ; 34 W. K. 533 ; 50 J. P. 518— D. B., father of paupers, had resided more than three years in S. parish, and then leaving his wife and children at S., started for the Cape iGood Hope in search of work. He sent his family a pound a week all the time he was abroad, and returned after a, year to S., where the family still lived, but he deserted them, and the children being under sixteen, were sought to be removed, on the ground that B.'s settlement in S. was lost by break of residence : — Held, that the absence for a year was a break of B.'s residence in S. Totneas Union v. Cardiff Union, 51 J. P. 133— D. Beceipt of Belief — Break of Besidence.] — The husband of the pauper had resided in the re- spondent union continuously for upwards of three years. During part of this time the pauper was in lunatic asylums, where she was maintained as a pauper lunatic, but in lucid intervals, the aggre- gate of which amounted to more than a year, she lived with her husband in the respondent union. The husband did not during his residence receive parish relief otherwise than in respect of the maintenance of his v(dfe as a pauper lunatic : — Held, that the husband was irremovable, for the periods during which he did not receive parish relief could be put together in order to constitute a year's residence by him under 9 & 10 Vict. c. 66, s. 1, and 28 & 29 Vict. o. 79, s. 8, and that the pauper took her husband's status of irremovability. Ipswich Union v. West Ham Union, 20 Q. B. D. 407 ; 58 L. T. 419 ; 36 W. R. 473 ; 52 J. P. 469— D. Bemoval of lunatic Wife— Consent of Hus- band — Separation of Husband and Wife.] — A wife, having become insane and chargeable to the union in which her husband dwelt, was taken from his house to the workhouse of the union, and the medical officer thereof certified, under 25 & 26 Vict. c. Ill, s. 20, that the lunatic was a proper person to be kept in a workhouse. An order was then made by justices for her removal alone to another union containing her husband's last place of settlement. The husband consented to the removal order ; the wife was mentally in- capable of consent : — Held, that the order of removal made under these circumstances did not contravene the policy of the law with regard to the separation of husband and wife, and was good. Reg. v. Preston Guardians or Garstang Union, 11 Q. B. D. 113 ; 52 L. J., M. C. 97 ; 49 L. T. 104 ; 48 J. P. 69— D. Pauper of Weak Intellect — Casual Poor — Status of Irremovability. ] — A pauper of weak intellect, whose place of settlement was in the W. union, and who had acquired a status of irremovability in the D. union, was found wandering in the B. union, where he became chargeable. At the time of his leaving the D. union he had not formed any intention of aban- doning his residence in the union, and owing to his mental incapacity he was incapable of exer- cising any independent choice as to his place of residence, but his mental condition was not such as would justify his detention in a lunatic asylum : — Held, that he was not a casual pauper in the B. union, and was removable therefrom, under 14 Car. 2, c. 12, to the W. union, notwithstanding the status of irremovability acquired in the D. union. Reg, v. Waliefield Gvardians, 48 J. P. 326— D. IV. MAINTENANCE AND BELIEF OF PATJPEES. Liability of Children of first Marriage, where Mother living with second Husband.] — A woman and her second husband became chargeable to a parish, and received from it a weekly sum as outdoor relief, which was paid to the husband : — Held, that the children of the woman by a former husband were liable under 43 Eliz. c. 2, s. 7, to relieve and maintain her, and therefore to contribute towards such relief for her main- tenance, and that their liability was not affected by 4 & 5 Will. 4, c. 76, s. 56, enacting that all relief to a wife shall be considered as given to her husband. Arrowsmith v. Dickenson, 20 Q. B. D. 252 ; 58 L. T. 632 ; 36 W. R. 507 ; 52 J. P. 308— D. Maintenance of Married Woman — Order upon Husband towards Cost of Belief.] — It is not a condition precedent to the power of justices under 31 & 32 Vict. c. 122, s. 33, to order the husband to pay for the maintenance of his pauper wife, that the guardians should have fixed the sum for her relief. Therefore, although the guardians 1887 POOK LAW— Workhouses. 1388 have not fixed any sum for lier future relief, but have given her a small weekly sum, the justices may, under the 33rd section, order the husband to pay for her maintenance such weekly sum as, considering the condition of the husband and all the circumstances, may be proper, although it may exceed the amount of the relief previously given to her by the guardians. Dinning y. South Shields Union, 13 Q. B. D. 25 ; 53 L. J., M. C, 90 ; 50 L. T. 446 ; 48 J. P. 708— C. A. Revers- ing, 32 W. R. 317— D. Grant of Letters of Administration to Nominee of Guardians.] — B., a pauper lunatic chargeable to the guardians of the Kingston Union, died, a spinster and without parents, leaving three brothers and one sister her surviving, all of whom renounced their right to administration. One other brother, who had gone to America in 1871, but who had not been heard of since 1883, was cited by advertisement, under order of the court. The court, upon the application of the guardians, made a grant of administration to the clerk to the board as their nominee. Syrne, In Goods of, 52 J. P. 281— Butt, J. Eeeovery of Arrears.] — Under s. 104 of the Lunatic Asylums Act, 1853, the guardians of the poor of a parish to which a pauper lunatic is chargeable are entitled in the event of his becoming entitled to property to recover only six years' arrears in respect of the sums paid by them for his maintenance in an asylum. ]Vew- iegin, In re, Mggleton v. Newlegin, 36 Ch. D. 477 ; 56 L. J., Ch. 907 ; 57 L. T. 390 ; 36 W. R. 69— Chitty, J. The deceased had, for over six years prior to her death, been supported as a pauper lunatic at the county lunatic asylum. During the whole of this period she was, in fact, entitled to an annuity of 2il. \6s. &d., payable by the Commis- sioners for the Reduction of the National Debt. This fact only came to the knowledge of the guardians at the time of her death, or shortly thereafter : ■ — Held, that the claim of the guardians was not limited to the period of twelve months prescribed by s. 16 of that statute, but that, in respect of such period, they were entitled absolutely to repayment, under the statute, and, as to a further period not exceed- ing five years (making six years in all), they were entitled to come in and claim as ordinary creditors, notwithstanding the fact of their having taken no steps to recover payment for such expenditure during the lifetime of the deceased pauper lunatic. Lambeth Guardians V. JBradshaw, 57 L. T. 86 ; 50 J. P. 472— Butt, J. Power to Recover Expenses at Death.]— Where A. was maintained as a pauper lunatic, though the guardians knew that he had some property, which was just suflicient to support his wife, on summons under Ord. XLV. r. 1, of the Rules of Court, 1883, for payment of a sum of 56Z. 6«. in respect of such maintenance : — H eld, that, though the guardians had not obtained an order from justices during the lifetime of the deceased, they were entitled to payment. Weister, In re, Derby Union v. Sharratt, 27 Ch. D. 710 ; 54 L. J., Ch. 276 ; 51 L. T. 319— V.-C. B. Eight to Reimbursement — " Person en- titled to receive any Payment as Member of Benefit or Friendly Society."] — A member of a trade union is not " a member of a benefit or friendly society, and as such entitled to receive any payment," within the meaning of the 23rd section of the Divided Parishes and Poor Law Amendment Act, 1876 (39 & 40 Vict. c. 61), inasmuch as the Trade Unions Act, 1871 (34 & 35 Vict. c. 31) expressly declines to enable any court to entertain proceedings to enforce an agreement to apply the funds of a trade union to provide benefits for members ; and therefore the guardians cannot under that section obtain from a trade union the repayment of expenses incurred in the relief of a pauper lunatic mem- ber. Winder v. Kingston-upoTiSull, 20 Q. B. D. 412 ; 58 L. T. 583 ; 52 J. P. 535— D. V. WORKHOUSES. Lease of Site — " Charitable Use " — Non-enrol- ment — Reservation to Grantor— Rent, non-pay- ment of.] — By a lease dated in 1747 — after recit- ing that the inhabitants of the parish of G. had resolved to build a workhouse for the better reception and employment of the poor of the parish, and had applied to the lessor for a lease of the land demised, and that the lessor, "in order to encourage so good a work," had con- sented to grant the lease — a piece of land was demised for a term of 150 years to commence from a day fifteen days later than the date of the lease, at the yearly rent of \s., to several persons, one of whom was the vicar of G., in trust that the lessees might build a workhouse upon the land " for the better reception and employment and for the lodging and entertain- ment only of all the poor people of the parish of G. for the time being during the said term, iu such manner as they, or the major part of them, shall think fit, at the proper costs and charges of the inhabitants of the said parish of G., or otherwise, and not to be let, mortgaged for money, or assigned, to any other use, intent or purpose whatsoever." And it was agreed that, if the inhabitants should discontinue the pre- scribed use of the building so to be erected, and should be willing to deliver it to the landlord, it should be lawful for them to do so, he paying to the churchwardens or overseers of the parish the then value of the building. The deed was not enrolled under the Mortmain Act, 1736 (9 Geo. 2, 0. 36). A workhouse was duly erected on the demised land pursuant to the lease. In 1862, the workhouse, being no longer required, was pulled down, and no rent having been paid under the lease since 1776, the site was conveyed to a purchaser in fee under the Act 5 & 6 Will. 4, c. 69, enabling the parish authorities to sell the sites of disused workhouses. An action having been brought by a person claiming to be the reversioner against persons — as alleged assigns of the lease — claiming under the purchase of 1862, to recover the arrears of rent : — Held, that the lease was a lease for " charitable uses : " that it failed to comply with the requirements of the Mortmain Act in that, besides non-enrol- ment, it did not take effect in possession and contained reservations in favour of the grantor in the shape of rent and something in the nature of a right of pre-emption ; that these defects were not cured by s. 73 of the Poor Law Act, 1844 (7 & 8 Vict. c. 101), that act curing only one defect, namely, want of enrolment ; and 1389 POST OFFICE— POWER OF ATTORNEY. 1890 that the lease was accordingly void ab initio, and that the Statute of Limitations began to run against the grantor, if not from the execution of the lease, at all events from the time the rent ceased to be paid, Webster v. Southey, 36 Ch. D. 9 ; 66 L. J., Ch. 785 ; 56 L. T. 879 ; 35 W. E. 622 ; 52 J. P. 36— Kay, J. Semble, land acquired by parish ofiScers to enable them to perform their statutory obliga- tions, as, for instance, by providing a workhouse, is land acquired for a " charitable use." Surnaby v. JBarsiy (4 H. & N. 690) questioned. Jb. Employment of Boman Catholic Priest.] — See Beg. V. Haslehurst, ante, col. 1367. POST OFFICE. Post Of&oe Order cashed through Bankers — Negotiable Instrument. ] — The plaintiffs banked with the defendants. It was the duty of the plain- tiffs' secretary to pay all moneys received by him on behalf of the plaintiffs into the defendants' bank to the credit of the plaintiffs. The secre- tary without the knowledge of the plaintiffs kept an account at the defendants' bank. He paid into the defendants' bank to his own credit certain post-office orders belonging to the plaintiffs which the defendants subsequently cashed. The post-office regulations with regard to post-office orders provide that, when pre- sented for payment by a banker, they shall be payable without the signature of the payee of the receipt contained in the order, provided the name of the banker presenting the order is written or stamped upon it : — Held, that there had been a, wrongful conversion of the post- office orders above mentioned by the defendants ; and that the regulations of the post-office with regard to the payment of post-o JBce orders pre- sented through bankers did not give to those instruments in the hands of bankers the cha- racter of instruments transferable to bearer by delivery so as to bring the case within the doctiine of Goodmn v. Rnbarts (1 App. Cas. 476), and thus give the defendants a good title to the post-office orders independently of the authority given to the plaintiffs' secretary. Fine Art Society v. Union Bank, 17 Q. B. D. 705 ; 56 L. J. , Q. B. 70 ; 55 L. T. 536 ; 35 W. K. 114 ; 51 J. P. 69—0. A. Telegrams — Subsequently increased Charge — Authority of Clerk — Estoppel.] — Where a certain sum is charged for a telegram and the sender is afterwards called upon to pay an increased sum : — Held, that he is bound to pay the amount so claimed, as the Postmaster-General is in no way estopped from suing, and is not bound by inac- curate representations made by a clerk in his employ. Postmaster- General v. Green, 51 J. P. 582— D. Liability of Postmaster-General to pay Tolls.] — The proprietor of a certain bridge and roads had been empowered to construct the same by 36 Geo. 3, c. 94 ; and it was thereby enacted that all per- sons, horses, cattle, and carriages, should have free liberty, upon payment of the tolls prescribed by the act, to pass over such bridge and roads without hindrance. For a period of between eighty and ninety years before Feb., 1885, the persons in the employ of the Postmaster-General duly paid the tolls, but since that date exemption for such persons has been claimed, and the tolls not paid. The proprietors then presented a petition of right, the object of which was to show that the persons in the employment of the Postmaster-General were liable to pay the tolls in question. The Crown demurred to the petition of right. The alleged liability depended upon whether there was an express enactment still subsisting and exempting the mails from the tolls imposed by 36 Geo. 3, c. 24 :— Held, upon the construction of 25 Geo. 3, c. 57 ; 36 Geo. 3, c. 94 ; 8 Geo. 4, c. 126 ; 4 Geo. 4, c. 95 ; and 1 Vict. c. 32, that the express exemption of the mails from tolls contained in 25 Geo. 3, c. 57, was made applicable by the 53rd section of 36 Geo. 3, c. 94, to the bridge and roads in question. Held, also, that 25 Geo. 3, c. 57,although partially, and to a limited extent, repealed by 3 Geo. 4, c. 126, and 4 Geo. 4, c. 95, was not by the two last- mentioned acts repealed as to such bridge and roads. Held, also, that the mails were specially exempted from the payment of tolls to the proprietors of the bridge and roads by s. 19 of 1 Vict. c. 32, and that the suppliants were not entitled to any relief under their petition of right. Held, further, that neither usage nor long-continued practice could have any effect upon the facts in question. Nortliam Bridge Company v. Reg., 55 L. T. 759— Chitty, J. Bating Property of Postmaster-General under Telegraph Act.] — See St. Gabriel, Fenchuroh v. WilUam,s, ante, col. 1375. Injunction to compel "Withdrawal of Notice to Postmaster.] — B. was employed to manage one of L.'s branch offices for the sale of goods, and resided on the premises ; he was dismissed by L., and on leaving gave the postmaster directions to forward to his private residence all letters addressed to him at L.'s branch office : — Held, that B. had no right to give a notice to the post office, the effect of which would be to hand over to him letters of which it was probable that the greater part related only to L.'s business ; and that the case was one in which a mandatory injunction compelling the defendant to withdraw his notice could properly be made, the plaintiff being put under an undertaking only to open the letters at certain specified times, with liberty for the defendant to be present at the opening. Hermann Loog v. Bean, 26 Ch. D. 306 ; 53 L. J., Ch. 1128 ; 51 L. T. 442 ; 32 W. E. 994 ; 48 J. P. 708— C. A. POWER OF ATTORNEY. Construction— Operative part controlled by Recital.]— A power of attorney contained a recital that the donor was about to return to South Australia, and was " desirous of appoint- ing an attorney or attorneys to act for him during his absence from England." The operative part of the deed, which gave the at- torney large powers of mortgaging the donor's 1391 PEACTICE AND PLEADING. 1392 property, contained no mention of the duration of those powers : — Held, that the operative part of the deed was controlled by the recital, and consequently that charges efEeoted by the at- torney upon the property of the donor while he was in England were invalid as against him. Danhy v. Coutts, 29 Ch. D. 500 ; 54 L. J., Ch. 577 ; 52 L. T. 401 ; 33 W. R. 559— Kay, J. — -General Words — Authority to Mort- gage.] — A. gave a power of attorney to B. to manage real estate, recover debts, settle actions, also to " sell and convert into money " personal property, and to execute and perform any con- tract, agreement, deed, writing, or thing that might in B.'s opinion be necessary or proper for effectuating thepurposes aforesaid, orany of them, and " for all orany of the purposes " of those pre- sents to use A.'s name, and generally to do any other act whatsoever which in B.'s opinion ought to be done in or about A.'s concerns as fully as if A. were present and did the same, his desire being that all matters respecting the same should be under the full management and direction of B. : — Held, that the general words were limited by the special purpose of the power of attorney, and did not authorise a mortgage of his personal property. Lewis v. RaTnsdale, 55 L. T. 179 ; 35 W. E. 8— Stirling, J. Power to Pledge.] — A power of attorney authorised the holder "from time to time to negotiate, make sale, dispose of, assign, and transfer" a promissory note : — Held, that the holder had no authority to pledge the note. Jonmenjoy Coondoo v. Watson, 9 App. Gas. 561 ; 53 L. J., P. C. 80 ; 50 L. T. -til— P. C. Signature of Bankruptcy Petition on behalf of Principal.] — A bankruptcy petition signed by an attorney on behalf of his principal, is sufficiently signed, provided that the power under which the attorney acts is wide enough to confer upon him the necessary authority. Richards, Bx parte, Wallace, In re, or Wallace, Ex parte, Wallace, In re, 14 Q. B. D. 22 ; 54 L. J., Q. B. 293 ; 51 L. T. 551 ; 33 W. B. 66 ; 1 M. B. R. 246— C. A. A power " to commence and carry on, or to defend, at law or in equity, all actions, suits or other proceedings in which I or my property may be in anywise concerned," was held to confer such authority. li. POWERS. Of Appointment under Wills.] — See Will. Of Appointment under Settlements.] — Sec Husband and "Wife — Settlement. Of Trustees.]- <&e Trust and Trustee. Of Executors. ] — See Executor and Ad- ministrator. PRACTICE AND PLEADING. I. In the House of Lords — See Appeal. II. In the Court of Appeal — See Appeal. III. In the High Court of Justice. (A) Practice and Procedure. 1. Rules of Court, 1395. 2. Jurisdiction — Rehearing, 1395. 3. Parties to Actions and Proceed- ings by and against Particular Parties, 1397. a. Married Women — See Husband and Wipe. J. Companies — See Company. c. Executors and Administrators — See Executor and Ad- ministrator. d. Infants — See Infant. e. Lunatics — See Lunatic. /. Partners— -See Partnership. g. Third Parties, 1397. h. Suing in Forma Pauperis, 1397. i. Representative Parties, 1398. j. Service of Notice of Judgment on Person not a Party, 1399. h. Change of Parties, i. On Death. i». When Cause of Action Survives, 1400. 0. Practice, 1401. ii. On Bankruptcy, 1403. iii. On Birth of Parties, 1404. iv. Devolution of Interest, 1404. I. Adding and striking out Parties, i. Plaintiffs, 1404. ii. Defendants, 1406. 4. Writ of Summons. a. Form and Contents of, 1408. l>. Special Indorsement under Ord, III., r. 6, 1408. .". Service of Writ, 1409. d. Other Points, 1411. e. Service out of the Jurisdiction, i. Practice as to, 1411. ii. In what Cases allowed, 1414. 5. Appearance and Proceedings in Default of, 1419. 6. Judgment on specially - indorsed Writ under Ord. XIV., 1421. 7. Joinder of Causes of Action, 1423. 8. Intermediate Proceedings. a. Payment into and out of Court — Funds in Court. i. Order on Accounting Parties, 1425. ii.' Payment into Court with Defence, 1426. iii. Funds in Court, 1428. h. Staying Proceedings. i. Lis alibi pendens, 1430. ii. Non-payment of Costs, 1433. iii. Frivolous and Vexatious Ac- tions, 1434. iv. Abuse of Process, 1436. V. In other Cases, 1436. c. Particulars. i. In what Cases, 1436. ii. Practice, 1439. 139S PEACTICE AND PLEADING. 1394 d. Security for Costs. i. Persons resident abroad, 1410. ii. PlaintifE a, Trustee in Banli- ruptcj, 1442. iii. Action not for Plaintiff's Benefit, 1442. iy. Insolvency of Plaintiff, 1443. T. Married Women, 1443. vi. Fund in Court, 1443. 7ii. Of Appeals to Court of Appeal — See Appeal. Tiii. Of Appeals from County Courts — See County COUKT. ix. Eemitting Action to County Court in Default — See County Coukt. i. On Winding-up of Company — See Company. xi. In Interpleader — See Inteb- PLBADKE. e. Consolidation of Actions, 1444. /. Transfer of Actions, 1444. g. Discontinuance, 1446. h. Confession of Defence, 1447. i. Dismissal for want of Prosecu- tion, 1448. j. Inspection of Property, 1449. k. Accounts and Inquiries, 1449. I, Mandamus, Injunction, Receiver. i. Effect of Judicature Act, 1873, s. 25, sub-s. 8... 1453. ii. Prerogative Mandamus — See Mandamus. iii. Injunction — See Injunc- tion. iv. Eeceiver. o. In v?hat Cases, 1454. i8. The Application, 1455. y. Practice, 1456. 9. Pleadings. — See infra (B). 10. Third Parties — Notice claiming Contribvtion or Indemnity, a. In -what Cases, 1457. *. Practice, 1461. 11. Demurrer, Proceedings in lieu of, 1463. 12. Discovery, Inspection and Inter- rogatories — See DiscoyEHY. 13. Reference to Arbitration — See Aebitkation. 14. Trial. a. Place of Trial. 1466. I. Mode of Trial,' 1467. c. Notice of Trial, 1471. d. Proceedings at Trial, 1472. 15. New Trial, 1474. 16. Judgment. a. Practice, 1476. J. Motion for Judgment, 1477. c. Setting Aside, Varying or Im- peaching, 1478. d. Effect of Judgments, &c. — See Estoppel — J udgment. e. In default of Appearance — See supra, 5. f. In default of Pleading — See infra, B. 7. g. Ordering on Motion for New Trial — See supra, 15. h. Under Ord. XIV.— &'C supra, 6. 17. Mxecution — See Execution. 18. AttachmentSsQ Attachment. 19. Motions, Summonses, Petitions, and Orders, a. Motions, 1481. J. Summons. i. Service of, 1483. ii. Originating Summons. a. Service of, 1484. 0. Jurisdiction, 1484. c. Petitions, 1487. d. Orders, 1488. 20. Proceedings in Chambers. a. Judge at Chambers, 1492. i. Master at Chambers, 1192. c. Chief Clerk, 1492. 21. Court Fees, 1493. 22. Vacations, 1494. 23. District Registry — See District Registey. 24. Special Case, 1495. 25. Stop Order, 1495. 26. Time— Notice to Proceed, 1496. 27. Interpleader — See Intee- PLEADBR. 28. Affidavit— See Evidence. 29. Ikidence—See EVIDENCE. 30. Costs— See Costs. 81. Proceedings in particvlar Actions. u. Actions for Eecovery of Land — Ejectment, 1496. 1). Administration Actions — Sei- Executor and Adminis- trator. V. Partition Actions — Sec 'Parti- tion. d. Partnership Actions— See Paet- NBRSHIP. (B) Pleadings. 1. Generally, 1497. 2. Statement of Claim, 1498. 3. Defence, 1499. 4. Set-off and Counterclaim, 1500. 5. Amendment of, 1501. 6. Strildng out, 1504. 7. Default in Pleading and Proceed- ings thereon, 1506. IV. In the Probate, Admiralty and Divorce Division — See Husband and Wipe — Shipping — Will. V. In the Court op Bankeuptcy — See Bankeuptcy. VI. In the Judicial Committee op the Privy Council— See Colony. VII. In the County Court — iSee County COUET. VIII. In Ecclesiastical Court — See Eccle- siastical Law. IX. On Appeal peom Supbeioe Court — See Appeal. X. On Winding-up Companies— iSee Com- pany. XI. In Administration Actions — See Executoe and Administrator. XII. Under Trustee Acts— j&e Trust and Trustee. XIII. Under Lands Clauses Act - Lands Clauses Act. See 1396 PEACTICE AND PLEADING. 1896 III. IN THE HIGH COURT OF JUSTICE. (A) Practice and Frocedure. 1. EULES OF OOUET. "Cause then pending."] — A iudgmeut was delivered before the Rules of 1883 came into operation, by which the action was dismissed and the plaintifE was ordered to pay the costs. The taxing-master's certificate was made after the Rules of 1883 had come into operation : — Held, that the latter rules applied as the action was a " cause tlien pending " within the meaning of the preface of the latter rules. JBnswell v. Cooks, 57 L. J., Ch. 101 ; 57 L. T. 742 ; 36 W. E. 65 — C. A. " Forms shall be used."] — " The forms used in the appendix shall be followed with such varia- tions as circumstances may require," means that those forms can only be varied for the purpose of making them to be in accordance with the terms of the order. li. 2. JURISDICTION— REHEARING. Behearing— Fewer of Court or Judge.] — If a petition is heard on its merits, and is dismissed on the ground that the petitioner has failed to make out his case, he cannot on the subsequent discovery of fresh evidence in support of his case present a fresh petition for the same object, without leave of the court previously obtained. Souse, Ex parte. May, In re, 28 Ch. D. 516 ; 54 L. J., Ch. 338 ; 52 L. T. 78 ; 33 W. R. 917— C.A. The shareholders in a company passed an extra- ordinary resolution to wind upthecompanyvolun- tarily, but the resolution was void, the majority of members who voted not being entitled to vote. A creditor filed a petition in the Chancery Court of the Duchy of Lancaster for a, supervision order or for a compulsory winding-up order, and as the court and the petitioner were ignorant of the fact that the resolution was invalid, a super- vision order was made. Five months afterwards the petitioner discovered the invalidity of there- solution, and then moved before the Vice-Chan- cellor that the supervision order might be dis- charged, and a compulsory winding-up order made. This motion having been refused by the Vice- Chancellor on the ground of want of juris- diction to rehear the petition, the petitioner appealed from the refusal of the motion, and also applied to the Court of Appeal for leave to appeal against the original order notwithstand- ing the lapse of time. Semble, the Vice-Chan- cellor had no power to rehear the petition himself. Manchester Economic Building Society, In re, 24 Ch. D. 488 ; 53 L. J., Ch. 115 ; 49 L. T. 703 ; 32 W. E. 325— C. A. Order made but not drawn up.] — Whether a judge can rehear in chambers an order which he has previously made in chambers, but which has not been drawn up. Qusere. Adam Eyton, In re, Charlesworth, Ex parte, 36 Ch. D. 299 ; 57 L. J., Ch. 127— C. A. Order made and drawn up. ] — A charging order under the tiolicitors Act, made by a judge of the High Court, sitting in bankruptcy is not an order made by him under his bankruptcy jurisdiction, within b. 104 of the Bankruptcy Act, 1883, and therefore cannot be reviewed, rescinded or varied by him after it has been drawn up. Browm, Ex parte, Suffield ^ Watts, In re, 20 Q. B. D. 693 ; 58 L. T. 911 ; 36 W. E. 584 ; 5 M. B. E. 83— C. A. Though an ex parte order has been drawn up and entered, the party afEected thereby is at liberty to apply for the discharge to the judge who made the order ; the order being ex parte, such an application does not involve a rehearing. Boyle V. Sacher, 39 Ch. D. 249 ; 58 L. T. 822 ; 37 W. E. 68— C.A. Be-argument, when allowed.] — The court declined to allow a case to be re-argued on the ground that an enactment in the Conveyancing and Law of Property Act, 1881, had been over- looked. Birmingham Land Company v. London and North- Western Railway, 34 Ch. D. 261 ; 56 L. J., Ch. 956 ; 55 L. T. 699 ; 35 W. E. 173 —C.A. Bill of Beview — Summons for leave to bring Action in the Nature of — High Court or Court of Appeal.] — A defendant took out a summons asking that, notwithstanding the order made in the action, he might be at liberty to commence an action against the plaintifE in the nature of a bill of review grounded upon new matter, dis- covered after the making of the orders : — Held, that the old jurisdiction of the Court of Chancery to entertain an action in the nature of a bill of review was unaffected by the Judicature Act, though the leave to bring such an action was more usually obtained now by summons than by petition. The grounds for obtaining the leave were precisely the same as existed before the acts ; namely, the evidence discovered must he shown to be material, and must have been dis- covered since the decision, and it must be shown that it could not with reasonable diligence have been discovered before : — Held also, that an ap- plication to institute an action in the nature of a bill of review is part of the original jurisdic- tion of the High Court, and such an application should be made to the High Court, and not to the Court of Appeal, which has no original juris- diction of that kind. FalcTie \. Scottish Im- perial Insurance Company, 57 L. T. 39 ; 35 W. E. 794— Kay, J. Eetrial after Juror withdrawn.] — See Thomas V. Exeter Flying Post, post, col. 1474. Striking out Scandalous and Impertinent Matter.] — An application was made that certain parts of a bill of costs delivered might be ex- punged for scandal and impertinenoy. It was contended, in opposition, that the jurisdiction of the court was confined to scandalous and imper- tinent matter in pleadings and affidavits, and that, therefore, the application could not be entertained ; — Held, that every proceeding, of whatever nature, in the Court of Chancery, which was made the vehicle for the introduction of scandalous or irrelevant matter, could be amended or otherwise dealt with under the general jurisdiction of the court. Miller, In re, French, In re. Love v. Hills, 54 L. J., Oh. 205 ; 51 L. T. 853 ; 33 W. E. 210-7Kay, J. 1397 PEACTICE AND PLEADING. 1398 Of Court to Amend.] — See Cropper t. Smith, post, col. 1501. Judge in Chambers.] — See infra, 20, a. Cliancer7 Division — Action for less than £10.] — ^An action in respect of a sum of less than \0l. cannot be maintained in the Chancery Division. Westhury - on - Severn Sanitary Authority v. Meredith, 30 Ch. D. 387 ; 55 L. J., Oh. 744 ; 52 L. T. 839 ; 34 W. E. 217— C. A. [By Eules of Supreme Court, 1883, the Chancery Consolidated General Orders of 1860 are repealed.] 3. PARTIES TO ACTIONS AND PROCEED INGS BY AND AGAINST PARTICULAR PARTIES. a. Mabeied Women — See Husband and Wife. J. Companies — See Company. C. EXECUTOES AND AjDMINISTEATOES — See EXBCUTOE AND ADMINISTEATOE. d. Infants — See Infant. e. LtTNATics — See Lunatic. /. Paetnebs — See Paktneeship. g. THIED Paeties. Intervention by.] — A stranger to an action injuriously affected through any judgment sufiered by default may intervene in one of two ways. He may either obtain the defen- dant's leave to use the defendant's name, if the defendant has not already bound himself to allow such use of his name to be made ; and he may thereupon, in the defendant's name, apply to have the judgment set aside on termis. Or he may take out a summons in his own name at chambers, to be served on both the defendant and plaintiff, asking leave to have the judgment set aside, and to be at liberty to defend the action on terms. Per cur. Jacques v. Harrison, 12 Q. B. D. 165 ; 53 L. J., Q. B. 137 ; 50 L. T. 246 ; 32 W. E. 471— C. A. Notice claiming Contribution or Indemnity.] — See infra, 10. h. Suing in FobmI. Paupbeis. Leave, how granted.] — Leave to present a petition in forma pauperis will be granted on motion ; but such leave may also be obtained by summons in chambers. Leioin, In re, 33 W. E. 128— Xay, J. Proceedings on Crown Side.] — A party to proceedings on the Crown side of the Queen's Bench Division cannot be admitted to proceed as a pauper. Mulleneisen v. Coulson, 21 Q. B. D. 3 ; 57 L. J., Q. B. 464 ; 58 L. T. 562 ; 36 W. E. 811— D. Bight to be heard in Person.] — A person who has been admitted to sue as a pauper, but to whom no counsel has been assigned, is entitled to be heard in person. Tuoher v. Collinson or Cotterell, 16 Q. B. D. 562 ; 55 L. J., Q. B. 224 ; 54 L. T. 263 ; 34 W. R. 354— C. A. Appeal — Affidavits.] — Where a party who has not sued or defended as a pauper in the court below applies for leave to appeal in formS, pauperis, the court will follow by analogy Ord. XVI. rr. 22, 23, and 24, and not the old practice as to such appeals. A married woman suing without a next friend, her husband not being a party, applied for leave to appeal in form^ pau- peris : — Held, that her husband as well as herself must make the affidavit required by rule 22. Bolerts, In re, Kiff v. Eoberts, 33 Ch. D. 265 ; 35 W. R. 176—0. A. Taxation of Plaintiff's Costs — Remuneration for Solicitor and Counsel.] — Under the Rules of the Supreme Court, 1883, Ord. XVI. rr. 24, 25, 26, 27, 31, a successful plaintiff in an action in form§, pauperis tried before a judge and jury is entitled upon taxation as against the defendant to costs out of pocket only, and cannot be allowed anything for remuneration to his soli- citor or fees to counsel. Carson v. Pieliersgill. 14 Q. B. D. 859 ; 54 L. J., Q. B. 484 ; 52 L. T. 950 ; 33 W. R. 589 ; 49 J. P. 612— C. A. i. Hbpeesbntative Paeties. Fund raised by Voluntary Subscriptions- Action by some Hembers of Committee on behalf of all against former Member.] — An action was brought by five of the members of a church building committee, on behalf of themselves and the other members of the committee, against a former member, claiming an account of all moneys received and paid by him in respect of the church building fund during the period of his membership. The fund was raised by volun- tary subscriptions ; seventeen persons having constituted themselves into a committee to re- ceive subscriptions for the purpose of improving the church of the parish, and to apply the moneys thus collected : — Held, that, the members of the committee being mere agents of the subscribers, the action could not be maintained by some of the agents against others. StricMand v. Weldon, 28 Ch. D. 426 ; 54 L. J., Ch. 452 ; 52 L. T. 247 ; 33 W. E. 545— Pearson, J. Cestui que Trust — Interest entitling Party to bring Action.] — To entitle a third person not named as a party to a contract, to sue either of the contracting parties, that third person must possess an actual beneficial right which places him in the position of cestui que trust under the contract. By a deed of separation between hus- band and wife, the husband covenanted with the trustees to pay them an annuity for the use of the wife and two eldest daughters, and also to pay to the trustees all the expenses of the main- tenance and education of the two youngest daughters. On one of the two youngest daughters subsequently attaining sixteen the husband re- 1399 PEACTICE AND PLEADING. HOO fused any longer to maintain her, whereupon she brought an action by her next friend against the husband and the trustees of the separation deed to enforce the husband's covenant, the trustees having refused to allow their names to be used as plaintiffs : — Held, that upon the con- struction of the deed the plaintiff was not in the position of cestui que trust under the covenant so as to entitle her to maintain the action, but liberty was given to her to amend by adding the trustees, the wife, and the other daughters, or any of them, as plaintiffs. The trustees refused to be joined as plaintiffs, and the statement of claim was amended by making the wife a co- plaintiff ; — Held, that she had such an interest as entitled her to sue, the deed being an arrange- ment between the husband and wife, and the trustees being introduced on her behalf in order to get over the difficulty that the husband and wife could not at law sue each other, so that the trustees were to be considered trustees for the wife, and if they refused to sue, she could sue in equity. Gandy v. Oandy, 30 Oh. D. 57 ; 54 L. J., Ch. 1154 ; 53 L. T. 306 ; 33 W. E. 803 — G.A. Refusal of Trustee to sue — Special Circumstances.] — By his will a testator ap- pointed executors, and bequeathed, amongst other legacies, the sum of 10,000Z. to J. M. J. M. settled 8, 0002., part of such legacy, upon his children, and E. B. and J. H. were appointed trustees of the settlement. ' The 8,000Z. was paid by the executors of the testator's will to E. B., one of the trustees of the settlement, upon his sole receipt, and the same was subsequently converted by him to his own use. He absconded and was made bankrupt, and a trustee in bankruptcy was appointed. An action was then commenced by C. M., one of the children of J. M., against the executors of the testator's will, and also against the trustee in bankruptcy of E. B. and J. H., to recover the 8,000Z. The plaintiff by his statement of claim alleged that, although he had requested the de- fendant J. H. so to do, such defendant had re- fused to take or concur in any proceedings for the recovery of the 8,000Z. from the estate of the testator, or from his executors. A summons was taken out on behalf of the defendants, the exe- cutors of the testator, asking that the action might be dismissed with costs as against them, on the ground that the statement of claim dis- closed no reasonable cause of action against them : — Held, that, although a mere refusal to sue on the part of a trustee did not entitle a cestui que trust to sue in his own name, yet the circumstances of this case were special enough to render it proper that he should so sue. But held that, in order to guard against a multitude of actions, all the other cestuis que trust must be made defendants to this action. MeUlrum v. Scorer, 56 L. T. 471— Kay, J. _;. Sbevicb or Notice of Judgment on A Person not a Party. On Purchaser — Appearance — Setting aside Order for Service.] — In an action for adminis- tration, judgment for administration was delivered on the 2nd June, 1883, and in November, 1884, notice of the judgment was served by the plaintiffs, under an order of the court on P., a purchaser of part of the testator's estate in which the plaintiffs were not interested. He was not a party to the action, and it did not appear from the judgment how he was affected. In order to ascertain his position, he entered an appearance on the 22nd November, 1884, under Ord. XVI. 1-. 41. On finding that he was not affected by the judgment, he served notice of motion on the plaintiffs that the order directing service might be discharged for irregularity, that the service might be declared irregular and set aside, that the appearance entered by him thereupon might be vacated, and that the costs of the application and consequent on the service might be paid by the plaintiffs. The motion was ordered to stand over, and P. was kept in the proceedings till the hearing on further con- sideration, when Bacon, V.-C, refused to give him any costs : — Held, on appeal, that P. was not a person who ought to have been served under Ord. XVI. r. 40, and that the service was irregular ; that P. was right in appearing to the ' notice, that his appearance must be vacated, and ' that the plaintiffs must pay the costs in both 'i courts, including the costs of appearance and all costs consequent on the service. Symona, In re, Betts v. Betts, 54 L. T. 501— C. A. li. Change or Parties. i. On Death. B. Wlien Cause of Action Survives. Breach of Promise of Marriage - Damage.] — No action lies for damages for breach of promise of marriage against the personal representatives of the promisor, un- less in respect of special damage — that is, actual loss to the temporal estate of the promisee, flowing directly from the breach, or which may reasonably be supposed to have been in the contemplation of both parties a,t the time of the promise as the probable result of the breach of it. Finlay v. Chirney, 20 Q. B. D. 494 ; 57 L. J., Q. B. 247 ; 58 L. T. 664 ; 36 W. E. 534 ; 52 J. P. 324— C. A. Libel — Publication injurious to Property- Slander of Title.] — An action for defamation, either of private character or of a person in relation to his trade, comes to an end on the death of the plaintiff, but an action for the publication of a false and malicious statement, causing damage to the plaintiff's personal estate, survives : — Held, therefore, that a claim for falsely and maliciously publishing a statement calculated to injure the plaintiff's right of pro- perty in a trade-mark was put an end to by the death of the plaintiff after the commencement of the action only so far as it was a claim for libel, but that so far as the claim was in the nature of slander of title the action survived, and could be continued by his personal repre- sentative, who would be entitled to recover on proof of special damage. SatcTiard v. Mege, 18 Q. B. D. 771 ; 56 L. J., Q. B. 397 ; 56 L. T. 662 ; 35 W. E. 576 ; 51 J. P. 277— D. Liability ex Contractu implied by Foreign Law — Waste.] — A testator, domiciled in Eng- land, died leaving considerable property in that country. He was also entitled as "possessor" 1401 PRACTICE AND PLEADING. 1402 to the usufruct of three estates in Austria, Hun- gary and Croatia, held under three family settle- ments or fidei commisse. Every fidei-commiss was subject to the jurisdiction of the land court of the district in which the property was situate, and on every change of possession (which could take place only on succession) the successor made a declaration to the court that he took possession. It was a fundamental principle of Austrian, Hungarian, and Croatian law that the " possessor " was bound to maintain the subject- matter of the fidei-commiss, and transmit it to his successor in the state in which he received it ; and upon his death his allodial estate was liable for dilapidations. A creditor's action was brought in England by the successor under the fidei-commisse, against the executrix and trustees of the testator for administration of his real and personal estate, the plaintiff claiming damages for dilapidations. The executrix ob- jected that no claim could be maintained in England in respect of any act or default com- mitted abroad, unless such act or default showed a good cause of action both in the foreign country and in England, and that, the claim being in the nature of a claim for waste no action would lie in England : — Held, that the action rested on an implied contract or obliga- tion and not on tort, and that the maxim Actio personalis moritur cum persona did not apply. Batthyany v. Walford, 36 Ch. D. 269 ; 56 L. J., Ch. 881 ; 57 L. T. 206 ; 35 W. E. 8U— C. A. Infringement of Trade Mark.] — An action by the registered owner of a trade mark claiming an injunction restraining infringement and fraudulent imitation, and the usual conse- quential relief, is not extinguished by the death of the plaintiff, but survives to his personal representatives. Oakey v. Daltim, 35 Ch. D. 700 ; 56 L. J., Ch. 823 ; 57 L. T. 18 ; 35 W. E. 709— Chitty, J. Action by Director against Co-directors for Contribution — Death of one Defendant.] — L. and two others were directors of a company, and on various occasions authorised loans to be made out of the funds of the company. The company after- wards brought an action against another director for such unauthorised loans, and recovered judg- ment against him, which he discharged. He then brought an action for contribution against the three directors, of whom L. died after the commencement of the action, and his ad- ministrator was made a defendant : — Held, that the action survived against L.'s estate. Ba/ni- sUll V. Edwards, 31 Ch. D. 100 ; 55 L. J., Ch. 81 ; 53 L. T. 949 ; U W. R. 96— Pearson, J. 3. Practice. Beference to Arbitration purporting to bind Sepresentatives.] — Where an action of tort dying with the person is referred to arbitration by an order made by consent, and with a stipulation that the award shall bind the representatives in the case of the death of either party, and the plaintiff dies before the award, the action abates, and the plaintiff's executors cannot be substi- tuted. Sowlier V. JEkans, 15 Q. B. D. 565 ; 54 L. J., Q. B. 421 ; 53 L. T. 801 ; 33 W. R. 695— C. A. Co-plaintiff after Judgment — Execution.] — Where judgment is obtained by several executors, and one of them dies after the entering of judg- ment, the survivors may issue execution in the name of all the plaintiffs, and it is unnecessary to have any order for leave to do so. Baird v. Thompson, 14 L. E., Ir. 497— Q. B. D. Order to continue Proceedings before Pro- bate.] — Where, after an order directing the trial of issues of fact before a jury, one of the plain- tiffs died within fourteen days of the date fixed for the trial, the court, on the application of his executors, made an order continuing the pro- ceedings, the executors undertaking to apply forthwith for probate, and to produce the same at the trial of the action if obtained. Hughes v. West, 13 L. E., Ir. 224— V.-C. One of several Defendants in same Interest — Absence of Personal Representative.] — Pending an action to make several defendants liable for a breach of trust, H. S., one of the defendants, died before decree, having made his will ap- pointing executors, who had not proved the wiU. It appearing that the liability of the surviving defendants was the same as that of H. S., the court made an order that the suit should proceed in the absence of a personal representative of H. S. Hibernian Joint Stock Company v. Fottrell, 13 L. E., Ir. 335— M. E. Amending Order — Death of Sole Trustee In- testate.] — Upon the death of a sole surviving trustee intestate, the court made an order for the appointment of new trustees, and ordered certain lands forming part of the estate to vest in the new trustees "for the estate therein now vested in the heir-at-law of the deceased trustee." After the order had been passed and entered ad- ministration was taken out to the estate of the de- ceased trustee. Upon motion that the order of the court might be altered by substituting the legal personal representative for the heir-at-law of the intestate trustee in accordance with s. 30 of the Conveyancing and Law of Property Act. 1881, the court made a new order, that, notwithstand- ing the previous order, the land should vest in the new trustees " for all the estate therein now vested in the legal personal representative " of the deceased trustee. Filling's Trusts, In re, 26 Ch. D. 432 ; 32 W. R. 853— Pearson, J. Revivor — Person attending Proceedings.] — A person served with notice of an administra- tion judgment, and having obtained liberty to attend the proceedings under it, is in the same position as a party to the action, and is entitled to obtain an order of course to revive the action on the death of the sole plaintiff. Bnrstall v. Fearon, 24 Ch. D. 126 ; 53 L. J., Ch. 144 : 31 W. R. 581 — Pearson, J. Revivor for purposes of Appeal.] — By a mar- riage settlement the property of the wife was vested in trustees upon trust for the wife, for her separate use, and in case there should be no issue (which event happened) for the wife, her executors, administrators, and assigns, if she survived her husband, but if she died in his life- time then for the husband for his life, and sub- ject thereto for such persons as should be of the 1403 PRACTICE AND PLEADING. 1404 wife's own kindred as she should by will appoint, and in default of appointment, for such persons as would be entitled under the Statutes of Distribution, in case she had died intestate and unmarried. The marriage was dissolved in 1871, and in 1872, the wife, in a suit instituted by her against her late husband and the trustees of the settlement, obtained a decree that she was absolutely entitled to the property comprised in the settlement. By her will, dated in 1877, the wife disposed of the property as if it were her own absolutely, and died in 1881, in the lifetime of her late husband :■ — Held, in the absence of special circumstances, that the next of kin of the wife were not now entitled to an oraer to revive the suit or to carry on proceedings there- in for the mere purpose of appealing against the decree of 1872. Fusaell v. Dowding, 27 Ch. D. 237 ; 53 L. J., Ch. 924 ; 51 L. T. 332 ; 32 W. E. 790— Chitty, J. Where, after his action had been dismissed, the plaintiff died, the court in which the suit had been pending, notwithstanding that the time for appealing had then expired, made an order giving liberty to the plaintiflE's personal representative to carry on proceedings, in order that he might be in a position to apply to the Court of Appeal to entertain an appeal. Leahy V. Tolin, 19 L. E., Ir. 438— V.-C. Death of sole Defendant after Notice of Trial — Trustee in Bankruptcy — Proceedings to bind Official Eeceiver.J — The ssle defendant to an action who was a trustee in bankruptcy died after the action was set down for trial. The plaintiff amended the writ and statement of claim by making the defendant's executors and the official receiver in bankruptcy parties. All the new defendants appeared and the executors put in a defence, the oiEcial receiver took no steps beyond appearance. The plaintiff then gave the official receiver and the executors notice that the action had been restored to the paper for trial, but did not give fresh notice of trial nor serve the official receiver with notice of motion for judgment. At the hearing the execu- tors appeared, but the official receiver did not : — Held, on the merits, that the plaintiff was entitled to the relief sought, but the official receiver having been made a party, a motion for judgment against him must be made upon notice served upon him in the usual way. Jolmxton v. Miglish, 55 L. J., Ch. 910 ; 55 L. T. 55 ; 35 W. E. 29— North, J. ii, On Bankruptcy. Adoption of Action by Trustee.] — Where a trustee in bankruptcy had been substituted for the bankrupt as a defendant in an action against the bankrupt, and had asked for a state- ment of claim : — Held, that by so doing he had adopted the action as it stood, and must person- ally pay the costs of an appeal from an interlo- cutory order which had been made against the defendant before his bankruptcy, although he had given notice to the plaintiff that he did not intend to proceed with the appeal. Borneman V. Wilson, 28 Ch. D. 53 ; 54 L. J., Ch. 631 ; 51 L. T. 728 ; 33 W. E. 141— C. A. Security for Costs.] — See cases, post, col. 1443. iii. On Birth of Parties. Supplemental Action.] — ^Where an infant, who is a necessary party to an action, has come into existence after the date of the judgment, and proceedings have been taken under the judgment since the birth of the infant, but before an order under Ord. XVII. r. 4, adding the infant as party, has been applied for, the proper course is to obtain an order prefaced with a direction that the action be continued against him, and that an inquiry be made whether it is for his benefit that he should be bound by such proceedings, and that if it be so certified he is to be bound thereby. If it should not be so certified, it is open for the plaintiff to proceed by supplemental action. Peter v. Thomas-Peter, 26 Ch. D. 181 j 53 L. J., Ch. 514 ; 50 L. T. 176 ; 32 W. E. 409, 515— Chitty, J. iv. Devolution of Interest. Pendente lite.] — Where a testator appointed his two infant sons trustees on their attaining the age of twenty-one, and an administration action was commenced on the elder sou attaining twenty-one, in which the infant son was made a plaintiff, and the elder son was made defen- dant ; on the younger son attaining twenty-one, and becoming a trustee, and thus changing his interest and liability, the court, on an ex parte application under Ord. XVII. r. 4, of the Rules of Court, 1883, made him a co-defendant. Gooli, In re, Goold v. Goold, 51 L. T. 417— V.-C. B. Assignment of Contract — Action for Specific Performance.] — A local authority, having com- pulsory powers of purchase, gave notice to a landowner to treat, and the amount of compen- sation was assessed by a jury. Before comple- tion the landowner conveyed the land to the plaintiffs, subject to the claim of the local authority : — Held, that the plaintiffs could maiu- tain an action against the local authority for the specific performance of the contract arising- out of the notice to treat and subsequent assessment of value, without joining as plaintiff the land- owner to whom the notice was given. Bwr v. Wimbledon Local Board, 56 L. T. 329 ; 35 W. K. 404— Kekewich, J. I. Addino and Striking out Pasties. i. Plaintiffs. Consent.] — A person cannot be added as plaintiff without his consent in writing, even although he be indemnified against costs. Tryon v. National Provident Institution, 16 Q. B. D. 678 ; 55 L. J., Q. B. 236 ; 54 L. T. 167 ; 34 W. R. 398— D. The case of trustee and cestui que trust is not excepted from the general rule of Ord. XVI. r. 11, so as to enable the court or a judge to dispense with the consent in writing of the trustee, upon the application of a cestui que trust to amend by adding his trustee as co- plaintiff in an action in respect of the trust property. Besley v. BesJey, 37 Ch. D. 648 ; 57 L. J., Ch. 464 ; 58 L. T. 510 ; 36 W. E. 604— Chitty, J. 1405 PKACTICE AND PLEADING. 1406 Objection on Ground of— Stay of Pro- ceedings.]— Under Ord. XVI. r. 11 of the Eules ol Court, 1883, no person can be added as a plaintiff to an action without his written con- sent. The plaintiff brought an action upon a contract against the defendant, who insisted that one L. should be joined as a co-plaintiff as being a party to the contract, or, in the alterna- tive, that all proceedings in the action should be stayed until he was so joined : — Held, that inasmuch as L. had not consented to have his name added as a co-plaintiff, the court had no right by a roundabout process to make an order which would practically override the provisions of Ord. XVI. r. 11. Jackson v. Xriiger, 54 L. J., Q. B. 446 ; 52 L. T. 962— D. Adding two new Plaintiff's at Trial.] — In an action by a company, lessees for a long term of eleven houses, of which ten were unlet and in their possession when the writ was issued, and by their tenant of the remaining house as co- plaintiff, for an injunction and damages in respect of an alleged nuisance from noise ; the tenant, after delivery of the statement of claim and notice of trial, refused to go on with the action as co-plaintiff. The other ten houses having in the meantime been let, the plaintiff company applied at the trial for leave to amend by adding as co-plaintiffs two of the new tenants, who consented to be added. The application was granted as being within the discretion given by Rules of the Supreme Court, 1883, Order XVI. r. 11, of allowing the names of any parties, whether plaintiffs or defendants — " whose pre- sence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter " — to be added. House Property and Investment Company v. Horse Nail Company, 29 Ch. D. 190 ; 54 L. J., Ch. 715 ; 52 L. T. 507 ; 33 W. R. 562— Chitty, J. Adding Co-plaintiff' — Original Plaintiff having no Bight to Sue.] — The tenant for life of a trust fund brought an action against the trustees to make them liable for an improper investment. The trustees by their defence alleged that they had made the investment in question at the request of the plaintiff. The plaintiff thereupon applied for leave to amend by adding as co- plaintiff his son, who had a reversionary interest in the fund :— Held, that Ord. XVI. r. 11, does not authorise the allowing a plaintiff who has no right to sue, to amend by joining as co- plaintiff a person who has such a right. Waloott V. Lyons, 29 Ch. D. 584 ; 54 L. J., Ch. 847 ; 52 L. T. 399— C. A. Incapacity of Plaintiff' pending Action — Adding Next Friend.] — The plaintiff, subse- quently to the commencement of the action, became incapable from infirmity of transacting business. The defendants obtained orders that the plaintiff should make an affidavit of docu- ments, and that the defendants should be at liberty to administer interrogatories. The plain- tiff's brother, who for many years had managed the plaintiff's business affairs, made an affidavit of documents and answered the interrogatories. The defendants took out a summons under Ord. XXXI. r. 21, that the action might be dis- missed with costs on the ground of non-com- pliance with the orders. The plaintiff's brother also took out on behalf of the plaintiff a sum- mons for leave to amend by adding himself as next friend, and that the two affidavits which he had made might be accepted as compliance with the said orders of the court : — Held, that in the absence of evidence that the action was commenced without the plaintiff's sanction, no order could be made on the defendants' sum- mons, and the plaintiff's summons must be allowed. But as this was by way of indulgence to the plaintiff, costs of both summonses to be paid by the plaintiff. Cardwell (_Lord') v. Tom- linson, 54 L. J., Ch. 957 j 52 L. T. 746 ; 38 W. E. 814— V.-C. B. Necessary Parties — Covenant with Separate Covenantees.] — The plaintiff and two other persons conveyed to the defendants certain pieces of land, and by the deed of conveyance the defendants entered into a separate covenant vrith each of the vendors, his heirs and assigns, to make a road over the property conveyed, and to allow the vendors, their respective heirs, tenants, and assigns, to use the road. In an action, by the plaintiff alone for specific per- formance of the covenant : — Held, that the other two covenantees ought to be added as parties. Dix v. Great Western Railway, 55 L. J., Ch. 797 ; 54 L. T. 830 ; 34 W. K. 712— Kay, J. ii. Defendants. Application not Ex parte.] — An application to add a defendant to an action must not be made ex parte. Colbeck, In re, Hall v. Colbecli. 36 W. K. 259— Kay, J. Adding Joint Contractors at Defendant's in- stance.] — Where au action is brought against one only of several joint contractors the defen- dant is entitled as of right, under Ord. XVI. r. 11, to have his co-contractors joined as defen- dants, on the authority of Kendall v. Hamilton (4 App. Cas. 504). Pilley v. Mobinson, 20 Q. B. D. 155 ; 57 L. J., Q. B. 54 ; 58 L. T. 110 ; 36 W. E. 269-D. Since the abolition of pleas in abatement, the proper course for a defendant desirous of raising the objection of the non-joinder as a defendant of some one jointly liable with him, is to apply by siraimons at chambers, supported by an affidavit stating the facts, and showing that the person alleged to be jointly liable is within the jurisdiction, to have the action stayed. MacArthur v. Hood, 1 C. & E. 550— Day, J. Non-joinder — Discretion of Court.] — Upon an application under Ord. XVI. r. 11, by the de- fendant or defendants on the record, that other defendants be added, the court or judge may exercise a discretion, and the order will not be made unless it is shown that the non-joinder complained of will prejudice the parties to the action, or that " the. presence before the court of additional parties is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter." Leduc v. Ward, 54 L. T. 214 ; 5 Asp., M. C. 571— D. Adding, In what cases— Practice of Queen'e Bench Division.] — M. and E. entered into certain 1407 PEACTICE AND PLEADING. 1408 contracts with P. to build a mansion, and sub- sequently assigned to S. & Co. all their share, right, and interest in all moneys then or there- after to become due and owing under, or which should be or become payable by P. in respect of any matters connected with or arising out of the said contracts. In an action by S. & Co. against P. for an account, and for payment of what was due to them under the said contracts, P. moved, under Ord. XVI. r. 11, that M. and R. should be added as parties to the action : — Held, that, although the Queen's Bench Division had the same jurisdiction as that exercised by the Chancery Division in actions taking the shape of a general dealing with the subject-matter, yet it was not within the simplicity aimed at in the Queen's Bench Division to join the parties as defendants, no relief being sought against them by the plaintifEs, and that the court would not join them as plaintiffs without notice to them, and hearing them as to their interest and the terms on which the order should be made. Sanders v. Peeh, 50 L. T. 630 ; 32 W. R. 462— D. Action by one Executor — Absconding Execu- tor.] — One of two executors having absconded, the other executor sued a mortgagor. The court refused on the application of the defendant to add the absconding executor as defendant. Brage v. Ilartapp, 28 Ch. D. iU ; 54 L. J., Ch. 434 ; 51 L. T. 902; 33 W. R. 410— Pearson, J. Adding Puisne mortgagees after Judgment of Foreclosure.] — Where judgment in a foreclosure action has been pronounced, but has not been drawn up and entered, and it was discovered that there were puisne mortgagees, leave was given under Rules of Supreme Court, 1883, Ord. XVI. r. 11, to amend the writ and statement of claim by making the puisne mortgagees defendants. lieith V. Butcher, 25 Ch. D. 750 ; 53 L. J., Ch. 640 ; 50 L. T. 203 ; 32 W. R. 378— Kay, J. Joining Bankrupt Mortgagor in Possession — Foreclosure Action against Trustee.] — See Sut- filiffe T. Wood, post, col. 1424. Necessary Parties — Mining lease — Lessor.] — In an action by a, copyholder to restrain the working of coal under his land by A., who claimed to be entitled to do the acts complained of by virtue of a lease from B., the lord of the manor, B. was by amendment added as a defen- dant, on the allegation that he claimed the right by himself and his lessees to work the coal ; that he justified the acts of A., and that he had re- ceived and claimed to be entitled to receive from A. rents and royalties in respect of such wrongful working. On summons by B. under Rules of Supreme Court, 1883, Ord. XXV. r. 4, that the amended statement of claim might be struck out as against him on the ground that it disclosed no reasonable cause of action against him, and that the action might be dismissed as against him : — Held, that the lessor had been properly added as a defendant. Shafto v. Bolehow, Vaughan, and Co., 34 Ch. D. 725 ; 56 L. J., Oh. 735 ; 56 L. T. 608 ; 35 W. R. 562 — Chitty, J. Misjoinder — Adding Solicitors, where no Belief claimed against them.] — Where the cause of miction against one defendant is totally discon- nected with that against the other defendants, except so far as it arises out of an incident in the same transaction, there is a misjoinder, and it is not the case contemplated by Ord. XVIII. r. 1. Solicitors who were made parties with other defendants to an action, the statement of claim in which showed no reasonable cause of action as against them : — Held, entitled under Ord. XXV. r. 4, to an order dismissing the action as against them with costs, and striking their names out of the proceedings. Burstall v. Beyfus, 26 Ch. D. 35; 53 L. J., Ch. 565; 50 L. T. 542 ; 32 W. R. 418— C. A. To make solicitors or others parties to an action without seeking any relief against them, except payment of costs or discovery, is vexatious. Ih. Architect a Defendant — No Cause of Action shown.] — The architect of the defendant company was made a party to the action, but the statement of claim showed no cause of action as against him : — Held, that his name must be struck out of the proceedings, and the costs paid by the plaintiffs, including the costs of an affi- davit made by the architect upon the application for such an order. Amos v. Heme Bay Pavilion , 54 L. T. 264— Kay, J. Contractor a Defendant.] — Contractors should not usually be joined as defendants in an action against their employers for damages done in carrying out their contract. Serf v. Acton, Local Board, 55 L. J., Ch. 569 ; 54 L. T. 379— Pearson, J. Adding Parties in personam in Action is rem.] —See The BowesjieU, post. Shipping (Peac- TICE). 4. WRIT OF SUMMONS. a. FoKM AKD Contents op. Against Foreign Company.] — A writ issued against a foreign company having no office within the United Kingdom must be in the Form No. 5 or No. 6 of Part 1 of the Appendix to the Rules of 1883. A writ in Form No. 2 issued against a foreign company having no offices in the United Kingdom will be set aside. Sedgwici, v. Yedras Mining Co., 35 W. R. 780— D. Special Indorsement — Delivery.] — A writ specially indorsed with a statement of claim need not have the word " delivered " nor the date of delivery at the end of such statement of claim. Veale v. Aiitomatic Boiler Feeder Co., 18 Q. B. D. 631 ; 56 L. J., Q. B. 307 ; .35 W. R. 454— D. Indorsement of Costs.] — It is irregular to indorse a, writ of summons with an excessive amount for costs, and such a writ will be set aside. Jacobs v. Monclt, 12 L. B., Ir. 373— Q. B. D. b. Special Indorsement undbe Oedee XIL E. 6. Action for Becovery of Land — Landlord and Tenant.] — In an action for the recovery of land 1409 PEACTICE AND PLEADING. 1410 by a landlord against a tenant, the writ of sum- mons can be specially indorsed under Ord. III. r. 6 (f), only when the plaintiff was party to the lease or agreement under which the here- ditaments have been held, or when the defendant has paid rent to the plaintiff, thereby acknow- ledging his title, or when the defendant is other- wise estopped from denying the plaintiff's title. Casey v. Helhjer, 17 Q. B. D. 97 ; 55 L. J., Q. B. 207 ; 54 L. T. 103 ; 34 W. E. 337— C. A. Assignment of Debt.] — A writ of summons was indorsed with a claim for a sum of money due from the defendant to the plaintiff under an assignment ; this assignment, the terms of which were set out, was a request to the defendant to pay to the plaintiff a sum due from the defendant to the assignor under an I. 0. U. of a certain date, signed by the defendant. The indorse- ment did not give any particulars of the circum- stances under which the I. 0. U. was originally given : — Held, that the indorsement was a suffi- cient special indorsement under Ord. III. r. 6. Bickers v. Speight, 22 Q. B. D. 7 ; 58 L. J., Q. B. 42 ; 37 W. B. 139— D. Bond — Penalty.] — See Tuther v. Caralampi, post, col. 1422. Part of Claim unliquidated.] — A writ which claims payment of a sum which is in dispute, besides payment of a liquidated demand, is not specially indorsed so as to entitle the plaintiff to judgment under Ord. XIV. for the liquidated demand. Clarke v. Berger, 36 W. E. 809— D. Defence, Time for Delivery of.] — The service of a writ specially indorsed under Ord. III. r. 6, is delivery of a statement of claim to the defendant within the meaning of Ord. XXI. r. 6 ; so that the defendant has ten days from the time limited for appearance within which to deliver his defence. Anlaiy v. Pr(etoriiis, 20 Q. B. D. 764 ; 57 L. J., Q. B. 287 ; 58 L. T. 671 ; 36 W. E. 487— C. A. See further, post, col. 1508. ii. Seevicb of Weit. Time for — Specially indorsed Writ.] —A specially indorsed writ is not a pleading within the meaning of Ord. LXIV. r. 11, and service thereof may therefore be effected at any hour of the day. Murray v. Stephenson, 19 Q. B. D. 60 ; 56 L. J., Q. B. 647 ; 56 L. T. 720 ; 35 W. E. 666— D. Non-prodnction of Original Writ on Demand.] — -Where a person serving a writ did not, though requested so to do, show the original writ to the defendant, and the plaintiff signed judgment thereon : — Held, that all the proceedings taken under the writ should be set aside, whether such proceedings were to be considered as irregular, or absolutely void. Phillipson v. Emanuel, 56 L. T. 858— D. Substituted Service — Domicil out of the Juris- dietion.] — Where effectual personal service can- not be made upon a person " domiciled or ordi- narily resident in Ireland " owing to Ord. XI. r. 1 (e), the court will not allow substituted service to be made. Hillyard v. Smyth, 36 W. E. 7— D. There can be no substituted service of a writ in an action where there cannot in law be per- sonal service of such writ. Rule 6 of Ord. LXVII. is limited in terms to cases where the writ itself can be served as a matter of law, but where it cannot, from circumstances, be promptly served personally in matter of fact. Field v. Bennett, 66 L. J., Q. B. 89— D. Substituted Service within, of Writ issued for Service out of Jurisdiction.]— Where a writ has been issued for service out of the jurisdiction, and the defendant is abroad, a judge, if the attendant circumstances warrant substitution, may properly order a copy of such writ to be served within the jurisdiction, although it is not in the form used for service within the juris- diction. Ford V. Shephard, 53 L. T. 564 ; 34 W. E. 63— D. On Company out of the Jurisdiction — " Officer"-" Clerk."]- The defendant company having head offices in Paris, Bordeaux, and Marseilles, had agents and correspondents, among other places, in London. Service of a writ of summons on an agent ill London was set aside on the ground that it was not service on the " head officer, clerk, treasurer, or secretary of such corporation," within Ord. IX. r. 8. Motter V. Messageries Maritimes de France, 54 L. J., Q. B. 527— D. Branch Works within.] — A company had their registered office in Scotland, but carried on branch works in England. The writ in the action had been served on the manager of the branch works, and a copy had also been sent by post to the registered office : — Held, that the service was bad and must be set aside. Wood v. Anderston Foundry Company, 36 W. E. 918 — Stirling, J. Director within Jurisdiction Temporarily.] — A writ in form 1, Appendix A, part 1 to the Rules of 1883, with the exception that no address was inserted as that of the defendants, was issued against a foreign company having no place of business in this country, and was served at Dover on one of the managing directors of the company, who was temporarily there on business connected with the company : — Held, that the writ must be set aside. Tlie W. A. Soholten, 13 P. D. 8 ; 57 L. J., P. 4 ; 58 L. T. 91 ; 36 W. E. 559 ; 6 Asp. M. C. 244— Butt, J. Place of Business of Firm— Agent.] — Defendants were a Scotch firm, having an agent within the jurisdiction, whose authority did not extend to taking orders ; the name of the firm was affixed to the agent's offices ;— Held, that the offices of the agent were not a place of busi- ness of the firm for the purpose of serving the writ. BailUe v. Goodwin, 33 Ch. D. 604 ; 55 L. J., Oh. 849 ; 55 L. T. 56 ; 34 W. E. 787— North, J. London Agency,] — In an action against a foreign bank, service of the writ of summons on the head manager of the London " Agency " of the bank — the agency being ostensibly and in fact a bank with the usual offices, manager, and staff of clerks : — Held, to be good service on the defendants. Lhoneux v. Hong Kong and Shangltai Banking Corporation, 33 Ch. D. 446 ; % Z 1411 PEACTICE AND PLEADING. 1412 ■'55 L. J., Ch. 758 ; 54 L. T. 863 ; 34 W. B. 753— V.-C. B. . Waiver of Objection to Service.] — An appli- cation made by the defendants for security for costs constitutes a waiver of any objection as to service. Ih. On Member of Foreign Partnership.] — See Pollexfen v. Siison, ante, col. 1330. ' Service on Wrong Person — Amendment or Dis- charge.] — Where a writ has been served on a 'wrong person, and service is possible on the right person, leave will not be given under Ord. LXX. r. 1, to amend the irregularity, but the faulty service will be discharged with costs upon the application of the person intended to be served. Nelson v. Pastorino, 49 L. T. 564 — Pearson, J. Defendant Besident out of Jurisdiction — Leave to Issue Writ for Substituted Service.] — A writ which is intended to be served by sub- stituted service on a person residing within the .jurisdiction may be issued without leave of the court, though the defendant be resident out of the jurisdiction. Lewis v. Seriert, 16 L. R., Ir. 340— C. A. d. Otheb Points. Amending after Judgment.] — See Keith v. ,£utcher, ante, col. 1407. Be-service after Amendment.]^ — A writ of sum- mons amended under an order of court made in presence of both parties, the order being silent as to service, must be re-served on defendant, and a judgment marked without such re-service, and without any previous intimation to defen- dant of plaintiffs intention to amend, or to .abstain from amending, under the order, was set 'aside. Bryans v. Hughes, 14 L. E., Ir. 62 — Ex. .D. Waiver of Defect in.] ■ Doercks, post, col. 1419. ■ See Mulohern v. e. Sbkvicb out of the Jueisdiotion. i. Practice as to. Discretion — Evidence as to Merits.] — The court wiU. exercise discretion in allowing or dis- allowing service out of the jurisdiction, and in so doing will consider evidence as to the merits. Societi Generate de Paris v. Dreyfus, 29 Ch. D. 239 ; 54 L. J., Ch. 893 ; 53 L. T. 463 ; 33 "W. E. 823 — Pearson, J. Reversed on the facts, see -next case. On an application for leave to serve a writ out of the jurisdiction it is not suflScient that the ■ form of the action and the nature of the relief sought bring the case within Ord. XI. The plaintiff must show to the satisfaction of the court that he has a probable cause of action ; and the court in exercising its discretion will consider the facts of the case appearing on the affidavits, so far as may be necessary for that purpose. SocieU Ginerale de Paris v. Dreyfus. 37 Ch. D. 215 ; 57 L. J., Ch. 276 ; 58 L. T. 573 '; 36 W. E. 609— C. A, A sum of money was paid into court in an action in this country in which D. was the plaintiff. D. was resident in France. This fund was the subject of litigation between D. and the present plaintiffs in France, and judg- ment was given in the French courts that D. was entitled to the control of the fund in court subject to the liability to account to the plain- tiffs. The plaintiffs brought an action in this country asking for an injunction to restrain D, from receiving or dealing with the fund in court, and applied for leave to serve the writ on D. in France : — Held, that the French court having decided that D. was entitled to the control of the fund, leave to serve the writ ought not to be given. li. Application for Leave — Affidavit in Support— Uberrima Fides.] — Where an ex parte appli- cation is made to the court, the person making it must observe uberrima fides ; otherwise he is liable to have the order discharged at the instance of the person against whom it has been obtained. Where an ex parte order had been made, under r. 4 of Ord. XI., for service of the writ of sum- mons in an action upon the defendants, who were resident out of the jurisdiction, but the affidavit upon which the order was obtained contained misstatements of fact, which had the effect of showing that the plaintiEEs had prima facie an overwhelmingly good cause of action, the court held that r. 4 of Ord. XI. must he strictly enforced, and that therefore the order for service out of the jurisdiction must be dis- charged. Republic of Peru v. Dreyfus, 55 L. T. 802— Kay, J. Not necessary when Substituted Service intended.] — See Lewis v. Seriert, supra. Defendant not a British Subject.] — The court has jurisdiction to order the service of a writ of summons, or of a notice in lieu of a writ of sum- mons, on a defendant resident out of the juris- diction, who is not a British subject. James v. Despott, 14 L. E., Ir. 71— Q. B. D. Concurrent Writ for Service out of the Juris- diction — Original Writ renewed — Enlargement of Time.]— Under the Eules of Court, 1883, Ord. VI. rr. 1, 2, the court has power to give leave for the issue of a concurrent writ for service out of the jurisdiction, although the original writ was issued for service within the jurisdiction and has been renewed, and although there is only one defendant to the action. And where the writ has been renewed such leave may be given, not- withstanding that the enlargement of time for issuing a concurrent writ may affect the opera- tion of the Statute of Limitations. Smalpage V. Tonge, 17 Q. B. D. 644 ; 55 L. J., Q. B. 518 ; 55 L. T. 44 ; 34 W. E. 768-0. A. Foreigner bringing Action here.] — Semhle, that where a person resident out of the jurisdic- tion has brought an action in this country, he , has made himself amenable to the jurisdiction with respect to matters connected with his ac- tion. Yorkshire Tannery v. JEglington Chemical Company, 54 L. J., Ch. 81 ; 33 W. E. 162— Pearson, J. Service of Writ instead of Notice on Foreigner residing Abroad — Nullity.] — By Order XI. r. 6, " when the defendant is neither 1413 PEACTICE AND PLEADING. 1414 a British subject nor in Britisli dominions, notice of the writ and not the writ itself is to be served upon him." The plaintiffs sued the defendant, who was a foreigner residing in France, for goods sold and delivered to him in England, and obtained a judge's order for the service upon him of the writ out of the jurisdiction, the order being obtained upon an affidavit which stated erroneously that the defendant was a British subject. The writ was served upon the defen- dant in France, and judgment signed against him in default of appearance : — Held, that the service of the writ instead of a notice was a nullity, and not a mere irregularity, and that the Older for service of the writ and all subse- quent proceedings must be set aside. Hewitson V. Fahre, 21 Q. B. D. 6 ; 57 L. J., Q. B. 449 ; 58 L. T. 856 ; 36 W. R. 717— D. Order limiting Plaintiff's Bight to Becover at Trial.] — ^An order having been obtained under Ord. XI. r. 1 (e), for service of notice of a writ out of the jurisdiction in an action for the price of goods supplied, and service having been efEected accordingly, the defendant applied to a judge at chambers to rescind the order and to set aside the subsequent proceedings under it. The judge, being doubtful on the affidavits used whether there had been any breach of the con- tract within the jurisdiction, refused the appli- cation, but ordered that the plaintiff's claim should be limited to the recovery of the price of goods in respect of which it might appear at the trial that the writ could have been properly served out of the jurisdiction : — Held, that the order of the judge at chambers was rightly made. Tlbomas v. Samilton {Duchess Dowager). 17 Q. B. D. 592 ; 55 L. J., Q. B. 555 ; 55 L.T.385 ; 35 W. K. 22— C. A. Certificate in lieu of Affidavit of Service.] — Under Ord. XIII. r. 2 — which requires that be- fore taking proceedings upon default of appear- ance to a writ of summons, the plaintiff shall file an affidavit of service or of notice in lieu of ser- vice, as the case may be — the court, where notice of a writ is served out of the jurisdiction, has no power to allow a certificate of service to be filed in lieu of an affidavit, even where it appears that by the foreign law the process-server cannot make an affidavit as prescribed by r. 2. Ford v. MiescU, 16 Q. B. D. 57 ; 55 L. J., Q. B. 79 ; 53 L. T. 535 ; 34 W. E. 74— D. Notice — Omission in.] — The omission to copy in the notice the order giving leave to issue the writ and serve notice of it, is not such an in- formality as to make the service invalid. Rey- nolds T. Coleman, post, col. 1416. Objection to Contents of Affidavit,]— After the lapse of a year the defendant is too late to raise any objection to the order on the ground that the affidavit on which it was obtained did not fairly state the facts. J5. See also Republic of Peru V. Dreyfus, ante, col. 1412. Application to Discharge- Time for.] — Where a defendant who had been served out of the jurisdiction with a writ appeared and objected to the power of the court to issue it under the circumstances : — Held, that the application was too late under Ord. LXX. r. 2. Tozier v. Haw- Jtins, 15 Q. B. D. 650— D. See S. C. in C. A., infra. An order was made by the vacation judge, on the ex parte application of the plaintiffs, for service of the writ and notice of motion on the solicitors and at the place of business in Eng- land of a foreigner residing out of the jurisdic- tion. Without formally entering an appearance the defendant filed affidavits in opposition to the motion, and instructed counsel, who opposed the motion on the merits : — Held, that the de- fendant had thereby waived the right to raise any objection as to the irregularity of the order, and must be treated as if he had been properly served and had formally appeared ; that the fact that the ex parte order had been passed and entered did not prevent the right of the de- fendant to move to discharge it ; but that r. 12 of Ord. LXIII. did not apply to such a case, and that the proper mode of proceeding (if there had been no such order as aforesaid) would have been to apply, not to the Court of Appeal or the vacation judge, but to the judge to whose court the action was assigned, to discharge the order of the vacation judge. Boyle v. Saclter, 89 Oh. D. 249 ; 58 L. J., Ch. 141 ; 58 L. T. 822 ; 37 W. E. 68— C. A. ii. In what Cases allowed. Injunction — Breach within Jurisdiction of Contract made outside.] — The defendant, who was resident in Scotland, entered into a contract with an English mining company, whereby he was to perform certain services for them in the Transvaal at a salary. The contract was exe- cuted by the defendant in Scotland, but was in English form. The defendant proceeded to .the Transvaal, but returned therefrom before he had fully performed the services. He claimed a half-year's salary, which he alleged was due to him. This the company declined to pay on the ground that the defendant had broken his con- tract with them, and he thereupon threatened to present a. petition for the winding up of the company. The company brought this action claiming (1) rescission of the contract ; (2) re- turn of certain sums paid by them in pursuance of it, after setting off such salary, if any, as might be due to the defendant ; and (3) an in- junction to restrain the defendant from present- ing or advertising any petition for the winding- up of the company. An order having been made for service of the writ on the defendant in Scotland, he moved to discharge such order. He contended that the case was not within Ord. XI. r. 1, of the Eules of Court, 1883 ; that the action was not for a breach "within the jurisdiction" of a contract made without the jurisdiction I and that the company could not, merely by inserting in their writ a claim for an injunction, bring the case within the rule : — Held, that r. 1 of Ord. XI. applied to the case ; that it was not necessary that an injunction should be the only relief sought in order to bring the case within the rule ; and that the motion must therefore be refused. lAsbon-Bcrlyn Gold Fields Y.Heddle, 52 L. T. 796— Kay, J. Infringement of Trade Mark — De- fendant's Agents only within Jurisdiction. ] — A summons by T. A. M., a manufacturer, resident z z 2 1415 PEACTICE AND PLEADING. 1416 in Scotland, for leave to register a trade-mark, was pending before the Higli Court, and was opposed by J. M., also resident and carrying on a, similar manufacture in Scotland, on the ground that the mark was similar to one belonging to J. M. J. M. applied for leave to issue a writ against T. A. M. for an injunction and damages, on the ground that T. A. M. was selling his goods in England in such a way as to lead the public to believe that they were J. M.'s goods. J. M. deposed that the same witnesses would be required on the summonses and in the action, and that it would be most convenient and would save great expense if the action was brought in England, or that the summons and action could be tried together : — Held, that as an injunction in England could only be enforced against agents of T. A. M., and not against him- self, leave ought not to be given to issue the writ, the matter being one which was better left to the courts of Scotland. Marshall v. Marshall, 38 Ch. D. 330 ; 59 L. T. i84— C. A. - — - Bestraining Defamatory Post-cards.] — A writ of summons claiming an injunction to restrain the defendant (resident in Dublin) from sending to the plaintiffs, or either of them, in London, through the post-office or otherwise, libellous, defamatory, or obscene post-cards, &c., and also claiming damages, may by leave of the court be issued and served upon a defendant residing in Dublin, under Ord. XI. r. 1 (f), not- withstanding the obstacles to making the injunc- tion available. Tozier v. Hawldns, 15 Q. B. D. 680 ; 55 L. J., Q. B. 152 ; 34 "W. R. 22;?— C. A. Contract — Commission Agent — Wrongful Dis- missal.] — A. verbally agreed in Glasgow with B., a Scotch coal merchant, to act for B. as com- mission agent in Ireland. After A.'s return to Dublin some correspondence passed between the parties as to terms, but which, in the opinion of the court, was merely referential to the antecedent complete verbal contract. B. being dissatisfied with A., wrote and posted in Scotland a letter addressed to A. in Ireland, terminating the em- ployment : — Held, that A. was not entitled to an order for liberty to serve B. out of the juris- diction with a writ of summons, claiming com- mission and damages for wrongful dismissal. Hamilton v. Barr, 18 L. E., Ir. 297— C. A. To be performed within the Jurisdic- tion — Transfer of Shares.]^ — E., an American, residing in England for the purposes of his business, brought an action against C, an American resident in America, to enforce a con- tract by C, made in England, to transfer to E. shares in an English company. Leave was given to issue the writ, and serve notice of it in America. More than a year afterwards the de- fendant applied to discharge the order for service on the ground that there was no jurisdiction to order service abroad, as the contract was not one which, according to its terms, ought to be performed within the jurisdiction : — Held, that Ord. XI. r. 1, sub-s. (e), does not require that a contract should state in terms that it is to be performed within the jurisdiction, but that it is enough if it appears, from a consideration of the terms of the contract and the facts existing when the contract was made, that it was intended to be performed within the jurisdiction ; that a contract made in England to transfer shares in an English Company to a person resident in England was a contract which, according to its terms, ought to be performed within the juris- diction. Reynolds v. Coleman, 36 Ch. D. 453 ; 56 L. J., Ch. 903 ; 57 L. T. 588 ; 35 W. E. 813— C. A. Work done in Isle of Man — Place of Payment,] — In an application for service out of the jurisdiction it appeared that the action was brought by the plaintiffs, engine-makers in England, for the price of machinery erected by them in the Isle of Man for the defendants, a company carrying on business in the island. There was no agreement as to the place of payment : — Held, that it must be taken to be part of the contract that the plaintiffs should receive payment in England, that the action was therefore founded on a breach within the jurisdiction, according to Ord. XI. r. 1 (e), and that service out of the jurisdiction might be allowed. Robey v. Snafell Mining Convpamj, 20 Q. B. D. 152 ; 57 L. J., Q. B. 134 ; 36 W. R. 224— D. Delivery of G-oods in London.] — M., a merchant at New York, contracted to supply certain goods to B., a merchant in London, on certain terms. On arrival of the goods in London they were found to be defective and not accord- ing to contract, and the defects in them were not due to the sea voyage : — Held, that inasmuch as the breach was continuing, the English courts had jurisdiction, and therefore that the de- fendant might be served with notice of a writ of summons under Ord. XI. r. 1, sub-r. (e). Bar- row V. Myers, 52 J. P. 345— D. Charging Order.] — This was a motion for leave to issue for service out of the jurisdiction a writ in an action seeking to enforce a charging order obtained by the plaintiff, a judgment creditor, upon certain shares belonging to the defendant, the judgment debtor. The Judgment Act (1 & 2 Vict. c. 110), s. 14, which, by virtue of Ord. XLVl. 1. 1, regulates the effect of a charging order, provides that " such order shall entitle the judgment creditor to all such reme- dies as he would have been entitled to if such charge had been made in his favour by the judgment debtor." Ord. XI. r. 1, provides that service out of the jurisdiction of a writ of summons, or notice of a writ of summons, may be allowed by the court or a judge whenever (e) " the action is founded on any breach, or alleged breach, within the jurisdiction, of any contract wherever made, which, according to the terms thereof, ought to be performed within the juris- diction " : — Held, that, assuming that the case could be treated as one of contract at all, it would only be a contract that the shares should be charged, and of such a contract there had not been anv breach within the jurisdiction. Mnritz V. Sti'phan, 58 L. T. 850 ; 36 W. E. 779— North, J. To Supply News — ^Transmission through Postal Telegraph Office— Balance of Conveni- ence. J— A company, whose ofBce was in London, contracted with G., the proprietor of a Dublin iiuw.spapcr, for the transmission to him of news. The contract contained a condition that the company was not to be responsible for non- delivery or for delay or errors which might 1417 PRACTICE AND PLEADING. 1418 occur in the collection or transmission of its news supplies : — Held, that the contract was not fulfilled by the delivery of the news at the postal telegraph office in London for ti-anstnission to Dublin, and that, in an action by G . for breach of the contract in negligently and carelessly supplying him with false news, he was entitled to an order for leave to serve the writ of sum- mons out of the jurisdiction, on the grounds that the. breach of the contract occurred in Dublin, and that, having regard to the necessary wit- nesses, as disclosed by the affidavits on both sides, the preponderance of convenience was not against a trial in Ireland. Gray v. Press Asso- ■ " , 22 L. E,., Ir. 1—0. A. Defendant ordinarily Besident In Scot- land or Ireland.] — There is no power to allow service of a writ out of the jurisdiction in actions for breach of contract under Ord. XI., r. 1 (e), where the defendant is domiciled or ordinarily resident in Scotland or Ireland. Lenders or Sanders v. Anderson, 12 Q. B. D. 50 ; 53 L. J., Q. B. 104 ; 49 L. T. 537 ; 32 W. E. 230 ; 48 J. P. 136— D. An insurance company, whose registered office was in Scotland, and whose secretary resided there, but which also had agencies and a chief office within the jurisdiction of the High Court, issued a policy through an agent within the jurisdiction, to whom the premiums were paid. The company having refused to pay a claim on the policy : — Held, that it was not domiciled or ordmarily resident within the jurisdiction, and that leave to issue a writ for service out of the jurisdiction could not be granted. Jones v. Scot- tish Accident Insurance Company, 17 Q. B. D. 421 ; 65 L. J., Q. B. 415 ; 55 L. T. 218— D. Action for Sent of Land in England.] — Ord. XI., r. 1, does not enable the court or a judge to allow service out of the jurisdiction of a writ in an action for non-payment of rent due under a lease of land in England against defendants who are domiciled or ordinarily resident in Scot- land. Agnew v. TJslier, 14 Q. B. D. 78 ; 54 L. J., Q. B. 371 ; 51 L. T, 576— D. On appeal, the court held that the plaintiffs, having failed to show that the defendants were assignees of the lease, had not shown reason for the leave to be granted. Agnew v. Usher, 51 L. T. 576 ; 33 W. E. 126— C. A. Contract affecting Land^ — Compensation for Tenant-right — Custom.] — In an action by the outgoing tenant of a ferm in Yorkshire to re- cover from his landlord, who was ordinarily resi- dent in Scotland, compensation for tenant-right according to the custom of the country : — Held, that a " contract, obligation, or liability affect- ing land" was sought to be enforced in the action, and therefore that the court had power, under Ord. XI., r. 1 (b), to allow service of the writ of summons out of the jurisdiction. Agnew v. Usher (14 Q. B. D. 78) distinguished. Kaye V. SutlierUnd, 20 Q. B. D. 147 ; 57 L. J., Q. B. 68 ; 58 L. T. 56 ; 36 W. E. 508— D. Co-defendants served within the Jurisdiction.] — In an action to enforce against real estate in Trinidad the trusts of a creditor's deed (which had been established by a former suit in the Court of Chancery), the defendants were persons in whom the legal estate was outstanding, one of them being a British subject resident in Trinidad. The other defendants resided in Eng- land. An opinion was given by a barrister prac- tising in Trinidad that the beneficial interest in the real estate there was bound by the deed. The writ had been served on those defendants who were in England : — Held, that leave could be given to serve the writ on the defendant who was in Trinidad. Jenney v. Machintosh, 33 Ch. D. 595 ; 55 L. T. 733 ; 35 W. E. 181 — North, J. Discretion.] — Where a testatrix resided and was domiciled in Ireland, and died in Ireland, and her will was made and proved in Ireland, and she appointed three executors, two residing in Ireland and one residing and domi- ciled in England, and the executors sold some consols and invested the proceeds in the purchase of some Irish land, a beneficiary brought an action against the English executor in England, claiming that the investment was improper, and the executors were liable to replace the money. Leave having been given to serve the writ on the two executors in Ireland ; on motion to dis- charge the order giving such leave : — Held, that it was a matter of discretion for the judge, and the action having been properly brought against a man within the jurisdiction, the case fell within Ord. XI. r. 1 (c), and the motion must be refused. Harvey v. JDougherty, 56 L. T. 322 —Kay, J. "Proper" Parties.]— By Ord. XI. r. 1, service out of the jurisdiction of a writ of sum- mons or notice of a writ of summons may be allowed by the court or a judge whenever (g) " Any person out of the jurisdiction is a necessary or proper party to an action pro- perly brought against some other person duly served within the jurisdiction." In an action against defendants in London for breach of war- ranty of authority it appeared that they had assumed as agents for foreign principals to enter into a contract to be performed out of the juris- diction, and that there had been a breach out of the jurisdiction, the supposed principals having repudiated the contract as being made without their authority : — Held, that the foreign princi- pals were " proper " parties to the action within Ord. XI. r. 1 (g), and that service on them out of the jurisdiction of notice of the writ might be allowed. Massey v. Seynes, 21 Q. B. D. 330 ; 57 L. J., Q. B. 521 ; 36 W. E. 834— C. A. Affii-ming 59 L. T. 470— D. The plaintiff brought his action in England on a policy of marine insurance against several underwriters. He served his writ of summons on two of the underwriters who were within the jurisdiction, and applied for leave under Ord. XI. r. 1 (g), to serve his writ on the other defen- dants, who were residing out of the jurisdiction in Scotland, as being necessary parties to the action : — Held, that the plaintiff ought to be allowed to serve his writ out of the jurisdiction ; and that Ord. XI. r. 1 (g) was framed to meet such a case. Thanemore Steamship v. Tliompson, 52 L. T. 552 ; 5 Asp. M. C. 398— D. Substantial Defendant.] — On an applica- tion to serve a person out of the jurisdiction under Ord. XI. r. 1 (g), it must be shown that there is within the jurisdiction a defendant against whom substantial relief is claimed, and 1419 PRACTICE AND PLEADING. 1420 it must also be shown that the defendant within the jurisdiction has been previously duly served. YorJisJiwe Tannery v. Eglinton Cliemical CoTnpany, 54 L. J., Gh. 81 ; 33 W. B. 162 — Pearson, J. 5. APPBAEANCB AND PEOCEEDINGS IN DEFAULT OF. At Trial.]— &e post, col. 1472. Setting aside— Illusory Address for Service.] — A defendant appeared in person to a writ, and gave an address for service in the memo- randum of appearance. On inquiry, it was found that though the defendant . had once carried on business at the address given, he had ceased to do so, and had left no instructions as to the forwarding to him of letters or docu- ments. A letter forwarded by the plaintiff to his private address was returned through the Dead Letter Office. The plaintiff subsequently received a letter from the defendant from abroad. On an ex parte application the court made an order declaring the address for service illusory or fictitious under Ord. XIL r. 12. E. V. a or Eddl v. Cave, 54 L. J., Ch. 308 ; 51 L. T. 621 ; 33 W. B. 208— V.-C. B. By Partner.] — See Adam v. Townend, ante, col. 1330. Amending Defect in.] — A writ having been issued against a firm and others, was served on one defendant, F., in his individual capacity as a defendant, and also as representing both a co-defendant, G., and the firm (of which he, F., was supposed to be a member). F. was not, in fact, a partner in the firm, nor did he in any way represent either it or G. for the purposes of service. The firm entered a conditional appear- ance and moved to discharge the service as against them : — Held, that the defect in the firm's appearance, by reason of their not having appeared individually in their own names, could be cured by an undertaking of the partners so to appear ; that upon this being done the service must be discharged as against G., he being easily accessible, and there being no need for prompt service. Nelson v. Pastorino, 49 L. T. 564— Pearson, J. Effect of, on Defective Writ.] — Appearance to a writ is a " fresh step " taken within the meaning of Ord. LXX. r. 2, and a writ which is irregular to the knowledge of the defendant cannot be set aside on his application after appearance. Mulcliern v. Doerlis, 53 L. J., Q. E. 526 ; 51 L. T. 429- D. But see Willmott v. Freehold House Property Co., 51 L. T. 552 — C. A. Judgment in Default of — Application by Person not a Party.] — If a person who is not a party to the record, seeks to set aside a judg- ment by which he is injuriously affected, which the defendant in the action has allowed to go by default, he ought by summons, taken out in the name of the defendant, or if not entitled to use the defendant's name, then taken out in his own name, but in that case served on both the plaintiff and the defendant, apply for leave to have the judgment set aside, and to be allowed either to defend the action on such terms of indemnifying the defendant as the judge may consider right, or to intervene in the action in the manner pointed out by the Judicature Act, 1873, s. 24, sub-s. 5. Ord. XXVII. r. 15, is designed to enable judgments by default to be set aside by those who have or who can acquire a locus standi, and does not give a locus standi to those who have none. Jacques v. Harrison, 12 Q. B. D. 165 ; 53 L. J., Q. B. 137 ; 50 L. T. 246 ; 32 W. E. 471— C. A. Liquidated Demand — Claims for Fore- elosure and on Covenant.] — The writ in an action to enforce a mortgage security claimed an account of principal, interest, and costs on the mortgage and foreclosure or sale, and also the sum of 225Z. 10«. for principal and interest under the covenant contained in the mortgage deed. The defendant did not appear, and no statement of claim was delivered. Upon motion by the plaintiff for the usual foreclosure judgment nisi, and for liberty to sign final judgment for the amount indorsed upon the writ : — Held, that the plaintiff was entitled under Ord. XIII. r. 3, to sign judgment for the liquidated demand, not- withstanding that the claim was joined with a claim for foreclosure, but that he was not entitled to the foreclosure judgment. Bissett V. Jones, 32 Ch. D. 635 ; 55 L, J., Ch. 648 ; 54 L. T. 603 ; 34 W. E. 591— Chitty, J. Extent of Belief.] — Notwithstanding the provision of r. 4 of Ord. XX. that, whenever a statement of claim is delivered the plaintiff may therein extend his claim without any amend- ment of the indorsement of the writ — the plain- tiff cannot, when the defendant does not appear to the writ and a statement of claim is delivered by filing it with the proper ofiicer, obtain judgment in default of appearance for more than he has claimed by his writ. Gee v. Bell, 35 Ch. D. 160 ; 56 L. J., Ch. 718 ; 56 L. T. 305 ; 35 W. E. 805— North, J. In a foreclosure action, where a mortgagee applies, on motion for judgment, not only for foreclosure but also for a personal order for pay- ment of the mortgage debt and interest against a mortgagor who has made default in entering appearance and in delivering a defence, the statement of claim ought, however shortly, to contain an express statement of the covenant upon which the personal order for payment is claimed. Law v. PUlly, 56 L. T. 230 ; 35 W. E. 401— Chitty, J. Where no appearance has been entered by the defendant in an action, the plaintiff cannot, by his statement of claim, enlarge the scope of the claim indorsed on his writ. Where, therefore, a defendant did not enter an appearance to the writ issued in a foreclosure action, and the writ was not indorsed for payment, the court held that the plaintiff was only entitled to the usual order for foreclosure, although, on his statement of claim, he was also entitled to an order for payment against the defendant. Law v. Philhj, 56 L. T. 522 ; 35 W. B. 450— Chitty, J. Parties joined as Defendants to Counter- claim,] — A plaintiff by counter-claim can pro- ceed against defendants by counter-claim who do not appear in the same way as a plaintiff in 1421 PEACTICE AND PLEADING. 1422 an original action. A defendant to an action by ■which rights of common were claimed, counter- claimed against the plaintiffs, and several others whom he added as, defendants, and asked for an injunction on the ground of trespass. The added defendants did not appear or defend. The plaintiff by counter-claim moved for judgment in default of appearance, and upon admissions : — Held, that the motion must stand till the trial, as, if the question raised by the counter-claim was not connected with the original subject of the action, the added defendants were impro- perly brought before the court ; and if it was connected, then no relief should be given until trial. Veniey v. Thomas, 58 L. T. 20 ; 36 W. E. 398— Kelcewich, J. 6. JUDGMENT ON SPECIALLY INDORSBD WEIT UNDER OKD. XIV. In. what Cases — Foreign Judgment.] — In an action upon a foreign judgment in which the writ of summons has been specially indorsed under Ord. XIV., the plaintiff may obtain an order empowering him to sign final judgment. Hodsoll V. Baxter (B. B. & E. 884) followed. Grant v. Haston, 13 Q. B. D. 302 ; 53 L. J., Q. B. 68 ; 49 L. T. 645 ; 32 W. E. 239— C. A. Action for Becovery of Land.] — The relationship of landlord and tenant may be created by a mortgage deed, and therefore, in an action for recovery of land by mortgagees from a mortgagor in possession under a mortgage deed creating a tenancy between them, the writ may be specially indorsed under Ord. III. r. 6 (F.) so that Ord. XIV. will apply, and final judgment may be ordered. Dauiva v. Lavington, 13 Q. B. D. 347 ; 53 L. J., Q. B. 283 ; 51 L. T. 206 ; 32 W. E. 772— D. A mortgage deed contained a clause by which, for the purpose of securing the punctual payment of the interest, the mortgagor attorned tenant to the mortgagee, and the mortgagee had a power of re-entry for default in payment. Default having been made, the mortgagee commenced an action for the recovery of the premises, and applied for judgment under Ord. XIV. : — Held, that the mortgagor was a tenant whose term had expired or had been duly determined by notice to quit within the meaning of Ord. III. r. 6 (F.), and the plaintiff was entitled to judgment. DauJmz v. Lamngton (13 Q. B. C. 347) approved and followed. Hall v. ComfoH, 18 Q. B. D. 11 ; 56 L. J., Q. B. 185 ; 55 L. T. 550 ; 35 W. E. 48 — D. Claim for Foreclosure and Debt.] — A writ which claims foreclosure or sale and a re- ceiver, besides payment of the debt and interest, is not specially indorsed so as to entitle the plaintiff to summary judgment on the claim for debt and interest. Inibert-Terry v. Carver, 34 Oh. D. 506 ; 56 L. J., Oh. 716 ; 56 L. T. 91 ; 35 W. E. 328— North, J. Judgment against future Assets, qnando acciderint.] — In an action against an adminis- tratrix, commenced by a specially indorsed writ, the defendant showed that she was entitled to plead plene administravit, but did not dispute that there were outstanding assets of the de- ceased. Leave was given to mark judgment of assets quando acciderint. Form of order. Fincl- later v. Tuohy, 16 L. E., Ir. 474— Ex. D. Arrears of Alimony pendente lite.] — A claim for arrears of alimony pendente lite, is not a claim for a " debt or liquidated demand in money " within the meaning of Ord. III. r. 6, so as to entitle the plaintiff to apply for judgment under Ord. XIV. r. 1. Bailey v. Bailey, 13 Q. B. D. 855—0. A. AflBrming 53 L. J., Q. B. 583 ; 50 L. T. 722 ; 32 W. E. 856— D. Action on Solicitor's Bill— Taxation.] — Where an action is brought on a solicitor's bill of costs, and the defendant admits his liability, but desires that the bill should be taxed, the proper order to be made on an application for liberty to sign judgment under Ord. XIV. r. 1, is as follows : — " It is ordered that the bill of costs on which the action is brought be referred to the taxing-master, pursuant to the statute 6 & 7 Vict. 0. 73, and that the plaintiff give credit at the time of taxation for all sums of money received by him from or on account of the defendant, and let the plaintiff be at liberty to sign judgment for the amount of the master's allocatur in the said taxation, and costs to be taxed. Smith v. Edwards, 22 Q. B. D. 10 ; 58 L. J., Q. B. 227 ; 60 L. T. 10 ; 37 W. E. 112— C. A. In an action by solicitors upon an untaxed bill of costs, tlie court, on an application for judgment under Ord. XIII. r. 2, referred the costs for taxation subject to credits, and ordered judgment to be entered for the amount certified to be due. Larhia v. M'lnerney, 16 L. E., Ir. 246— Ex. D. Excessive Sum inadvertently Claimed.] — On a motion for judgment, the plaintiff's affi- davit verified the whole of the debt claimed in the writ of summons ; but the defendant having filed an affidavit disputing a part of the demand, the plaintiff by an affidavit in reply and by his counsel, admitted that this part of the claim could not be sustained, and had been included in the writ by mistake : — Held, that the plaintiff was entitled to judgment for the residue. Rye V. Sawhes, 16 L. E., Ir. 12— Ex. D. Bond — Penalty.] — The indorsement on a writ claimed 500Z., as the principal sum due on a bond conditioned for the payment by the obligor to the plaintiff of an annuity of 26Z. during the life of a child, and until she should attain the age of sixteen years, by specified quarterly payments, and alleged that two of such payments were due and unpaid : — Held, that the plaintiff was not entitled to. proceed under Ord. XIV. r. 1, to obtain final judgment, but was limited to the procedure specified in 8 & 9 Will. 3, c. 11, s. 8, and Ord. XIII. i. 14. Tutlier v. Caralampi, 21 Q. B. D. 414 ; 59 L. T. 141 ; 37 W. E. 94 ; 52 J. P. 616— D. Part of Claim unliquidated.] — See Clarhe T. Berger, ante, col. 1409. Form of Order against Married .Woman,] — An order giving leave to enter final judgment against a married woman in respect tof her separate estate by virtue of the Married Women's Pro- 1423 PEACTICE AND PLEADING. 1424 perty Act, 1882 (45 & 46 Vict. c. 75), ss. 1. 19, should state that execution is to be limited to such separate estate as the defendant is not re- strained from anticipating unless such restraint exists under any settlement or agreement for a settlement of her own property made or entered into by herself. Sursill v. Tanner, 13 Q. B. D. 691 ; 50 L. T. 589 ; 32 W. E. 827— D. Evidence of Separate Estate.] — In an action against husband and wife to recover a debt of the wife contracted before marriage, where the marriage has taken place after the coming into operation of the Married Women's Property Act, 1870, and the Married Women's Property Act, 1870, Amendment Act, 1874, but before the coming into operation of the Married Women's Property Act, 1882, judgment may be entered against the wife under Ord. XIV. r. 1, mating the debt and costs payable out of her separate property, with a limitation as regards execution similar to that in the form settled in Scott T. Morley (20 Q. B. D. 120), without proof of the existence of separate estate at the date of the judgment. Dovme v. FletcJier, 21 Q. B. D. 11 ; 59 L. T. 180; 36 W. E. 694 ; 52 J. P. 375— D. When Application to be made.] — If a plaintiff, after appearance by the defendant, takes a de- liberate step to have an action tried by a jury, by serving a statement of claim, or notice in lieu of statement of claim, he cannot then move for final judgment under Ord. XIII. r. 1. Stewarts- town Loan Company v. Daly, 12 L. E., Ir. 418- Ex. D. Affidavit — Sufficiency of.] — In an application for final judgment under Ord. XIII. r. 1, the affidavit of the plaintifi, after verifying the cause of action, stated that the plaintiff was " advised and believed that the defendant had no defence on the merits to the action " : — Held, that the affidavit was sufficient. Manning v. Moriarty, 12 L. E., Ir. 372— Q. B. D. Upon an application to sign final judgment on a writ, which was admittedly a specially indorsed one, for goods sold and delivered, the verification of the cause of action was a paragraph in the plaintiff's affidavit in the following words : — " The defendant herein is indebted to me in the sum of 2il. 16s." (being the amount indorsed), " as per particulars specially indorsed on the writ of summons herein " : — Held, that the para- graph, coupled with the indorsement, was suffi- cient to entitle the plaintiff to judgment. Murphy V. Mian, 18 L. E., Ir. 468— C. A. 7. JOINDBE OF CAUSES OF ACTION. Action for Recovery of Land — Amonnt of Valuation.] — Where an agreement for a tenancy had failed and the plaintiff brought an action for recovery of the land, and the defendant, who had entered into possession of the land, set up the agreement as a defence ; on summons brought by the plaintiff for leave to amend the indorsement on the writ by claiming a valuation which he alleged that the defendant had agreed to pay on entering into possession of the land, but had not paid : — Held, that the plaintiff had a right to claim the valuation under the agree- ment as an alternative, in case he failed in recovering the land, and that the amendment should be allowed. Ruslibroolce v. Farley, 54 L. J., Ch. 1079 ; 52 L. T. 572 ; 33 W. E. 557— V.-C. B. See also Clarli v. Wray, post, col. 1503. Foreclosure.] — A mortgage was created of certain land by A., who subsequently went into liquidation. The trustee in the liquidation sold the equity of redemption to B. An action was brought by the mortgagee against B. for foreclosure. The security was insufficient, and it was necessary to obtain possession as soon as possible. On demanding possession, however, the mortgagee found that A. was in possession and refused to go out. The mortgagee asked for leave to amend the writ in the action by adding the name of A. as a defendant, and by including, as part of the relief sought, a claim for recovery of possession of the mortgaged property : — Held, that the leave could not be granted. Suteliffe V. Wood, 53 L. J., Ch. 970; 50 L. T. 705— Kay, J. Irregularity — Objection by Defence.] — The plaintiff, without obtaining leave of the court, joined a claim for recovery of land with othei' claims. By his statement of claim he altered his claim for relief by omitting the claim for re- covery of land. The defendant by his defence raised the objection that the writ of summons was issued without leave of the court : — Held, that the defence ought not to be struck out as embarrassing. Wilmott v. Freehold House Pro- pcHy Company, 51 L. T. 552 — C. A. Semble, that such an objection is properly pleaded in the defence, that the plaintiff cannot cure the irregularity in his writ by omitting his claim for recovery of land from his statement of claim, that to cure the irregularity the writ of summons must be amended, and that such amendment cannot be made without the consent of the defendant. Ih. Time for taking Objection.] — An action was commenced against a trustee and the exe- cutors of his deceased co-trustee for the adminis- tration of the estate of a testatrix. The plaintifb subsequently amended their statement of claim without the leave of the court, and asked that one of the executors of the deceased trustee might be ordered to give up possession of a certain inn belonging to the trust estate. It was pleaded by the defence and urged at the trial that this pleading was irregular, as joining two causes of action without leave : — Held, that the defendant should have applied at once to have the pleadings set right, and the objection was now untenable. Derbon, In re, Derion v. Collis, 58 L. T. 519 ; 36 W. E. 667— Keke- wich, J. TTnconnected Claims against several Defen- dants.] — To bring into one claim distinct causes of action against different persons, neither of them having anything to do with the other (except as far as it is historically connected with it as one matter in the transaction) is not con- templated by Ord. XVIII. r. 1, which authorises the joinder not of several actions against distinct persons, but of several causes of action. Sur- stall V. JBeyfus, 26 Ch. D. 35 ; 53 L. J., Ch. 565 ; 50 L. T. 542 ; 32 W. E. 418— C. A. 1425 PRACTICE AND PLEADING. 1426 8. INTERMEDIATE PEOCEEDINGS. «. Payment into and out of Court — Fitnds m Court. i. Order on Accounting' Parties. In what Cases.] — Upon an interlocutory ap- plication for the payment of money into court made before the trial of an action for the taking of an account, where an account has been rendered, and the court has before it the parties to the account and evidence as to the items in dispute between them, the court will look into the facts of the case, and if in the fair exercise of its judicial discretion it can arrive at a con- clusion that a sum will be due to the plaintiff on the taking of the account, and what the amount of that sum will be, the court will order ,the defendant to pay that amount into court. Wanldyn y. WiUon, 35 Ch. D. ISO ; 56 L. J., Ch. 209 ; 56 L. T. 52 ; 35 W. E. 332— Stirling, J. Agreement for Mining Lease— Lessee in f ossession — Payment of Boyalties into Court.] — The plaintiffs commenced an action against the defendant for specific performance of an agree- ment for a lease of a coal mine by the plaintiffs to the defendant at a royalty, as the plaintiffs alleged, of lOd. per ton. The defendant counter- claimed to have specific performance with a royalty of less amount. The defendant was in possession, and raising and selling large quan- tities of coal, but he alleged that he had ex- pended on the mine more than the value of the coal raised. He also brought an action against the plaintiffs in the Queen's Bench Division to obtain damages for misrepresentation, alleged to have been made to him for the purpose of inducing him to enter into the agreement, which action was still pending. The plaintiffs moved for an interlocutory order that the defendant might be ordered to pay into court the amount of royalties at lOd. per ton on the coal he had raised, but the court refused the motion : — Held, on appeal, that although it would not be right, while the rate of royalty was in dispute, to order the defendant to pay into court the amount of royalties at the rate claimed by the plaintiffs, he ought to be ordered to pay in the amount of royalties at the rate which he himself alleged to be the one agreed upon, and that as his carrying away coal diminished the value of the property, he would not have the usual option of giving up possession instead of paying money into court. I^nois v. James, 32 Ch. D. 326 ; 56 L. J., Ch. 163 ; 54 L. T. 260 ; 34 W. E. 619 ; 50 J. P. 423— C. A. Admission of Defendant — Snfficiency of.] — The defendant, one of the trustees of a settle- ment, in letters written to the plaintiff, his co- trustee, before the commencement of this action for the administration of the trusts, admitted having received 300Z., part of the trust funds, and invested it in an unauthorised way. The plaintiff, after the defendant had appeared in the action, took out a summons to have the 300Z. brought into court, and made an affidavit de- posing that he had paid the money to the defendant, and stating the admissions con- tained in the defendant's letters as to its application. The defendant did not answer this affidavit or adduce any evidence, and the money was ordered into court on the ground that the letters were a sufficient admission within Ord. XXXII. r. 6. The defendant appealed :— Held, that as the defendant had not met the affidavit, there was a sufficient admission that the money was in his hands, and that the appeal must be dismissed. Freeman v. Cox (8 Ch. D. 148) ap- proved and followed. Per Fry, L.J., whether the letters were not a sufficient admission within Ord. XXXII. r. 6, quajre. Porrett v. White, 31 Ch. D. 52 ; 55 L. J., Ch. 79 ; 53 L. T. 514 ; 34 W. E. 65— C. A. In Affidavit In another Action.] — An order will not be made, under r. 6 of Ord. XXXII. in an action for money lent, unless there is a clear admission that the debt is due and recoverable in the action in which the ad- mission is made : — Quaere, whether the words " or otherwise " in r. 6 refer only to cases in which notice has been given under r. 1 or r. 4 of Ord. XXXII. LancLergan v. Feast, 55 L. T. 42 ; 34 W. E. 691— C. A. Eeversing 55 L. J., Ch. 505— T.-C. B. Letters.] — Trust funds may be ordered to be brought into court by the trustee, an accounting party, upon admissions contained in letters written before action brought that he h.as received the money, and a recital to that effect contained in the settlement, his execution of which as trustee has been proved, although there is no formal admission in his pleadings or affi- davits that he has received and holds the money. Hampdm v. Wallig, 27 Ch. D. 251 ; 54 L. J.. Ch. 1175; 51 L. T. 357; 32 W. E. 977— Chitty, J. See also Porrett v. White, supra. Enforcement of Order for Payment into Court.] — See Coney, In re, and Whiteley, In re, post, cols. 1453, 1454. ii. Payment into Court with. Befence. Particulars of Items.] — The court has a dis- cretion to order a defendant to give particulars of the items of claim in respect of which he pays money into court, but it can only make such an order when the trial of the action will be facilitated and neither party embarrassed by it. Orient Steam Navigation Company v. Ocean Marine Insurance Company, 34 W. E. 442— D. An action was brought by the plaintiff as les- sor, against the defendants, as lessees, of certain premises for — (1) possession ; (2) mesne profits ; (3) damages for dilapidations and non-repair. The defence was a general denial of all liability, and a payment of SOI. into court, as sufficient to satisfy the plaintiff's claim in the action. A judge at chambers having made an order that the defendants should give to the plaintiff par- ticulars in writing, stating in respect of which of the two heads of claim (mesne profits and damages for dilapidations) the payment into court was made, and if in respect of both, how much for each head : — Held, that the order was right, as the defendants ought to give the par- ticulars asked for, apportioning the sum paid into the different heads of claim. Howe v. Kelly, 59 L. T. 139— D. Defence setting up Tender — Denial of Liability —Payment out of Court— Liability of Solicitor 1427 PEACTICE AND PLEADING. 1428 to refund.] — In an action for wrongful dismissal, claiming a year's salaiy in lieu of notice, the defendant pleaded that the plaintifE was only entitled to one month's notice ; or, in the alter- native, three months ; that before action the defendant made tender of three months' salary, which the plaintifE refused ; that the defendant had paid the amount into court, and that it was enough to satisfy the plaintiff's claim. The request for lodgment in court contained a state- ment that the mojiey was paid in with a defence setting up tender. The plaintiff's solicitor, with- out obtaining an order, but on the written autho- rity of the plaintiff, took the money out of court, and the plaintiff proceeded with the action. At the trial judgment was given for the defendant on the ground that the plaintiff was only entitled to one month's salary. The defendant applied for an order against the solicitor to refund so much of the money taken out of court as repre- sented the difference between one month's and three months' salary. The solicitor had acted bona fide in taking the money out of court, and had paid it over to the plaintiff before the ap- plication to make him refund it was made : — Held, that although the plaintiff ought not to have had the money out of court, because a defence of tender of the sum paid in could not be pleaded to a claim for unliquidated damages, yet under the circumstances the solicitor ought not to be ordered to refund it. Davys v. Richardson, 21 Q. B. D. 202 ; 57 L. J., Q. B. 409 ; 59 L. T. 765 ; 36 W. E. 728— C. A. Denial of Liability—Order for Payment out.] — Where money is paid into court with a defence denying liability, and the plaintiff does not accept it in satisfaction, an order for payment of such money out of court cannot be made until after the trial or other determination of the action. Maple v. Slirewslury {EarV), 19 Q. B. D. 463 ; 56 L. J., Q. B. 601 ; 57 L, T. 443 : 35 W. K. 819—0. A. Payment in, by Mistake— Taking out.] — In an action for 1,349Z., the defendants paid 167Z. into court without regard to the regulations prescribed by the Rules of Court, 1883, and the Supreme Court Funds Rules, 1884. On the day of payment into court the defendants' solicitors wrote to the plaintiff's solicitor stating that they had that day paid 167Z. into court to t)ie credit of the action, " in discharge of the plaintiff's claim in this action." On the same day the defendant delivered a defence, which con- tained a denial of liability to the plaintiff, and stated that the sum paid into court was suflBcient to satisfy the plaintiff's claim if any should be established. The plaintiff took the money out of court and then continued the proceedings in the action : — Held, that in the circumstances the plaintiff must either keep the money and let all further proceedings except as to costs be stayed, or pay the money into court again, and go on with the action. Stamford (^EarV), In re, Savage v. Payne, 53 L. T. 512 ; 33 W. K. 909— C. A. Alternative Payment — Defendant Succeeding at Trial — Right to Judgment.] — Where the de- fendant succeeds at the trial on an issue on money paid into court under Ord. XXX. r. 1, of the Eules of 1875, with a defence stating such payment as an alternative defence to the action, he is entitled to have judgment entered for him in the action. In an action for tresjiass in breaking and entering the plaintiff's land, the defendants paid money into court under Ord. XXX. r. 1, of the Eules of 1875, and in their defence denied the plaintiff's possession of the land, and also stated that, without admit- ting any kind of liability, the sum paid into court was sufficient to satisfy any damage which the plaintiff might have sustained in consequence of any acts of theirs. The plaintiff joined issue upon these defences, but failed at the trial to establish any damages exceeding the sum paid into court, though he succeeded on the other issue. The Court of Appeal treated such defence of payment into court as an alternative payment, and as it went to the whole cause of action :— Held, that the defendants were entitled to judg- ment. Wheeler v. United Telephone Company, 13 Q. B. D. 597 ; 53 L. J., Q. B. 466 ; 50 L. T. 749 ; 33 W. E. 295— C. A. S. P. Gontard v. Carr, 13 Q. B. D. 598, n.; 53 L. J., Q. B. 467, n.; 33 W. E. 295, n.— C. A. Costs — Several Breaches of Contract — Payment into Court in respect of one Breach— Acceptance in Satisfaction.] — In an action for breach of contract assigning two distinct breaches, the defendants pleaded denying the breaches, and alternatively paid money into court with regard to one of the breaches. The plaintiffs gave notice under Ord. XXII. r. 7, that they accepted the money paid into court in full satisfaction of the causes of action in the statement of claim :— Held, that plaintiffs were entitled, without pro- ceeding to judgment, to their costs of the action ; for by accepting the money paid into court in satisfaction of all their alleged causes of action they had in effect discontinued or withdrawn the action as to the breach, in respect of which the money was not paid in. 31'Ilwraith v. Grem, 14 Q. B. D. 766 ; 54 L. J., Q. B. 41 ; 52 L. T. 81 — C. A. Payment into Court for Debt and Costs.] — In an action for a money demand, the defen- dant pleaded an agreement, after action brought, by the plaintiffs to take a certain sum for debt and costs, and brought that amount into court on foot of debt and costs. The plaintiffs' soli- citor served notice on the defendant's accepting the sum so paid into court "in satisfaction of the plaintiffs' claim in respect of which it was paid in:" — Held, that the plaintiffs were not entitled to any costs beyond the sum lodged in court. Goodbody v. Gallaher, 16 L. E., Ir. 336 ■Q. B. D. iii. Funds in Coxirt. Under the Lands Clauses Acts.]— &e Lands Clauses Act. Under Trustee Belief Act.]— &e Tkust and Teustbe. Payment out of small Sum — Married Woman.] — Where a married woman had been for many years deserted by her husband, and no settle- ment had been made upon her marriage, the court made an order for payment to her by way of provisional advance of a small portion of the ! share of a capital fund in court, to which she 1429 PEACTICE AND PLEADING. 1430 had been declared entitled. JBarlter v. Vogan, 17 L. E., Ir. 447— V.-C. Infants.] — Small sums of money repre- senting shares of infants in a fund in court may- be directed to be paid out by the Paymaster- General into the Post-office Savings Bank to accounts in the names of the infants. Elliott v. Elliott, 54 L. J., Ch. 1142— Chitty, J. Payment out — Carrying over to separate Account — Title of Account.] — Where it is pro- posed upon a petition for payment out of part of a fund in court to cairy over a share in such fund to the separate account of the person entitled, the account should be in the name of such person, and not in the name of such person or his in- cumbrancer — i.e., " the account of A. B." not "the account of A. B. or his incumbrancers." Sargraie v. Kettlewell, 55 L. T. 674 ; 35 W. E. 136— Chitty, J. Contingent Interests — Stop - order — Mortgagees.] — Where a contingent interest in a fund in court has been mortgaged, and the mort- gagee places a stop-order on the fund, but the mortgagor dies before his interest vests, the persons ultimately entitled to the fund upon applying for payment out, need not serve such mortgagee. Vernon v. Oroft, 58 L. T. 919 ; 36 W. E. 778— Chitty, J. Money representing Eeal Estate — Affi- davit of No Incumbrances.] — Applications by persons claiming to be absolutely entitled for payment out of money in court representing real estate, should be supported by an affidavit of no incumbrances, and prim^ facie, the appli- cant is the proper person to make the affidavit. Williams v. Ware, 57 L. J., Ch. 497 ; 58 L. T. 876— Chitty, J. To Infant.]— -See ruFAST; III. Person of Unsound Mind not so found,] — See Lunatic, I. Forged Affidavit — Order on Solicitor to Bepay.] — Where money was paid out of court upon a forged affidavit, the solicitor to the pro- ceedings taking no steps in the matter himself, but allowing the matter to be attended to by a managing clerk of another firm, the solicitor was held liable to replace the money and pay all necessary costs incurred. Slater v. Slater, 58 L. T. 149— Kay, J. : Money paid in as Security for Costs.] — See post, col. 1443. Assignment of Trust Fund — Duty of Assignee as to Notice.] — When an assignment is made of an iuterest in trust funds, part of which is in court and part in the hands of trustees, the assignee in order to complete his title must, as regards the funds in the hands of the trustees, give notice to the trustees. Notice to the trus- tees will be ineffectual as regards the fund in court, and as to that fund the priorities of dif- ferent assignees will be determined by the dates at which they have obtained stop-orders. An assignee who has obtained a stop-order is en- titled (as regards the fund in court) to priority over a prior assignee (of whose assignment he. had no notice) who had given notice to thetrustees before the date of the stop-order, but who had not himself obtained a stop-order. Mutual Life Assurance Society v. Langley, 32 Ch. D. 460; 54 L. T. 326—0. A. Petition or Summons — Payment out of Court.] — Money had been paid into court by executors under the Trustee Belief Act to the credit of an account entitled, " In the matter of the trusts of the sale moneys of certain real estate formerly belonging to E., deceased, and subject to the trusts of a certain Boyal warrant dated the 6th August, 1861." The fund had originally been about 1,500Z. On an application by summons under Ord. LV., 6002. , part of the fund, was ordered to be paid out, but as to the remainder the summons stood over for further evidence as to the death of an annuitant. The further evi- dence having been obtained the application was renewed, the summons asking for payment out of the balance to the applicant : — Held, that the case was not within Ord. LV. at all, and the application ought to be made by petition and not by summons. Evans, In re, 54 L. T. 527 — Kay, J. A sum of more than 1,000Z. had been paid into court in 1883, under the Trustee Belief Act, representing the share under a will of J. E., who could not be found. The administrator of J. E. now took out a summons for payment out of this sum upon evidence that J. E. had attained twenty-one and died intestate : — Held, that the court would not make the order without a peti- tion. Bhodes' Will, In re, 31 Ch. D. 499 ; 55 L. J., Ch. 477 ; 54 L. T. 294 ; 34 W. E. 270, 501 — Pearson, J. The generality of sub-s. 1 of Ord. LV., r. 2, of Eules of Court, 1883, is not cut down by sub-s. 5 of the same rule ; and consequently, an applica- tion under the Trustee Belief Acts, for the pay- ment out of court of a fund, even though it exceeds l,O00Z., where the title of the applicant merely depends upon proof of his birth, should be made by summons and not by petition. Broadioood's Trusts, In re, 55 L. J., Ch. 646 ; 55 L. T. 312— Chitty, J. Where the title to a fund in court depends only upon proof of the identity of the birth, marriage, or death of any person, the mere fact that the fund exceeds 1,0002. will not justify the making of an application for the payment or transfer of the fund out of court by petition instead of by summons in chambers. Mhodes, In re (31 Ch. D. 499), commented on. Bates v. Moore, 38 Ch. D. 381 ; 57 L. J., Ch. 789 ; 58 L. T. 513 ; 36 W. E. 586— North, J. See also Lands Clauses Act, III. 3. ■ Stop-order.] — Where a fund in court, paid in under the Trustee Belief Act, 1847, exceeds 1,0002., and there has been no prior application in the matter of the fund, a petition and not a summons is the proper mode of apply- ing, under rr. 12 and 13 of Ord. XL VI. of the Eules of Court, 1883, for a stop-order on the fund so paid in. Toogood's Trusts, In re, 56 L. T. 703 —Chitty, J. Tj. Staying PEOCEBDiNas. i. Lis Alibi pendens. Breach of Faith.] — A collision occurred on the 1431 PRACTICE AND PLEADING. 1432 high Beas between the C. and the J., two foreign XesselB. The C. was arrested in Holland in an action brought by the owners of the J. and her cargo, but was released with the consent of the agent of the J. on the guaranteeof a firm of under- writers interested in the 0. to answer judgment in the action. Cross proceedings were instituted in the Dutch court by the owners of the C. and the J. An action was subsequently commenced in this country against the owners of the C. by the owners of the J. and her cargo, and the C. arrested in respect of the same collision. The plaintiffs expressed their willingness to abandon the action in Holland : — Held (dissentiente Brett, M. E.), that the proceedings in this country must be stayed and the ship released. The Christiamhorg, 10 P. D. 1« ; 54 L. J., P. 84 ; S3 L. T. 612 ; 5 Asp. M. 0. 491— C. A. Petition for SlTorce in India — Petition for Eestitution in England.] — A husband who had been residing with his wife in India presented a petition, in India for a divorce from her on the ground of her adultery with the co-respondent, who also resided in India. Before the presenta- tion of the petition the husband sent his wife home to her relations in England, and whilst the petition was pending he came over for a short time for the purpose of making arrangements for his children. The wife then served him with a petition for the restitution of conjugal rights. The court refused an application made by the husband for a stay of proceedings on his wife's petition until the suit in India had been determined. Tliomton v. Thornton, 11 P. D. 176 ; 55 L. J., P. 40 ; 54 L. T. 774 ; 34 W. K. 509 — C. A. Cross Action by Defendant in Foreign Country.] — In an action of damage in personam by the owners of the ship G. against the owners of the ship P., it appeared that a cause of damage in rem relating to the same collision had, prior to the proceedings in this court, been instituted by the owners of the P. against the Or. in a Vice- Admiralty Court abroad, and was then pending. The court, on the application of the owners of the ship P., stayed the proceedings in this court until after the hearing of the cause in the Vice- Admiralty Court abroad. Tlie Pesliawur, 8 P. D. 32 ; 52 L. J., P. 30 ; 48 L. T. 796 ; 31 W. E. 660 ; 5 Asp. M. C. 89— Sir E. Phillimore. B., resident in San Francisco, brought an action against C. in England alleging that C. had been B.'s agent to purchase for him goods in England ; that B. had recently discovered that C. had in the accounts rendered charged more for the goods than he had paid for them, and asking for an account against C. as agent. C, delivered a defence in which he denied agency, alleged that he had as principal sold the goods to B., insisted on the accounts rendered as settled accounts, and alleged that a large balance was due. C. then commenced an action in San Francisco against B. to recover the amount which he 60 alleged to be due. B. moved to restrain this action : — Held, that the action ought not to be restrained, for that there was no prim^ facie inference that the bringing the action abroad, during the pendency of an action in England in which the matters in dispute could be determined, was vexatious, since the course of procedure in San Francisco might be such as to give advantages to C. of which he was entitled to avail himself, and that the burden lay on B. to prove that C.'s action was vexatious, which he had failed to do. Syman v. Helm, 24 Ch. D. 531 ; 49 L. T. 376 ; 32 W. E, 258— C. A. Action in Colony and in England— Coimter- claim.] — B., of London, and M. and C, of Honduras, carried on business in partnership at Honduras as G. & Co. B. and N. carried on business in partnership in London under the same name. The Honduras firm employed the London firm as their agents under an agree- ment by which B.'s share in the profits of the Honduras firm was to be brought into account as between the two firms to the credit of the English firm. The Honduras partnership was dissolved, and B. obtained a decree in Honduras for taking the partnership accounts. Before those accounts had been fully taken, M. and C. brought this action in England against the London firm for an account of the dealings between the two firms, alleging the defendants to have made improper profits in their agency. The defendants denied having made improper profits, and by counter- claim claimed to have the accounts of the Honduras firm taken. The counter-claim was ordered to be struck out : — Held, that though if M. and C. had not brought this action, B. would not, after obtaining a decree in Honduras, have been allowed to carry on another action here for the same purpose, still as the two actions were so closely connected that neither of them could be finally wound up independently of the other, B. ought not to be prevented from pro- ceeding with his counter-claim so as to be in a position to ask at the trial of this action for such a decree as might be right, having regard to the then position of the Honduras action ; and that on N.'s undertaking to be bound by the proceedings in the Honduras action, the order must be discharged. Mutrie v. Binney, 35 Ch. D. 614 ; 56 L. T. 455 ; 36 "W". E. 131— C. A. Power of Conrt to look at Proceedings in Action Abroad.] — H., a lessee of estates in Ire- land, claimed the exclusive right of shooting. S., the lessor, claimed that on the true con- struction of the lease such right was reserved to him. On the 19th Sept., 1883, H. com- menced an action in the Chancery Division in England to restrain S. from interfering with his alleged rights, and, in the alternative, for rectifica- tion of the lease. On the 22nd Sept., 1883, S. commenced a common law action in Ireland against H. for trespass. The Irish action was heard first, resulting in a verdict (sustained by a divisional court) for S., with 6d. damages. H. had also raised by his defence a plea for rectifi- cation of the lease, but it did not appear clearly that this question was ever submitted to the jury. Upon a summons in the English action raising the question of res judicata : — ^Held, that the pleadings and judgments in the Irish action might be put in evidence, having been only very briefly referred to by S. in his defence, as amended with leave, upon the analogy of the old practice, which permitted a judge in similar cases to refer to a master for a report as to the nature of the questions raised and decided in another action. Upon looking into such proceedings the court • was not satisfied that the question of rectifica- tion was ever really decided against H., and accordingly refused to stay the present action on 1433 PRACTICE AND PLEADING. 1434 that ground. Hmtston v. SUgo {Martitijis), 29 Ch. D. 448 ; 52 L. T. 96— Pearson, J. Action in another Branch of Court.] — An action having been brought in the Common Pleas Division against the defendant as executor de son tort of B,, deceased, the defendant obtained letters of administration to B., and then issued a writ in the Chancery Division for administration of the real and personal estate of the deceased, and before obtaining a decree the defendant moved the Common Pleas Division for an order to restrain the plaintiff's action, and obtained an order staying the proceedings pending the administration suit : — Held, that the court had no jurisdiction to restrain the plaintiff's action, as no decree for administration had been obtained. Hlggins v. Browne, 16 L. E., Ir. 173 — C. A. Section 27, sub-s. 5 of the Judicature (Ireland) Act, 1877, only gives the court power to stay proceedings in cases where the Court of Chan- cery, before the act, could have restrained the action. Ih. — Per Sir E. Sullivan, C. ii. Non-payment of Costs. Of Former Action — Second Action for same Matter.] — A bill for an account of the personal estate of W. J., an intestate, was filed by the legal personal representative of E. B. against the personal representatives of the deceased adminis- trators of W. J., alleging that the administrators of W. J. had got in the greater part of the estate, and that E. B. was the sole next of kin. The suit was revived in 1877 by M., a subsequent personal representative of E. B., against X. and Y., as representatives of one of the administra- tors, and Z., as representative of the others, and was ultimately dismissed in 1880 with costs, as against all three defendants, on the ground that the title of E. B., as next of Isin, was not proved. After this M. took out adjninistration de bonis non to W. J., and brought his action as such administrator against Z. for an account of the personal estate of W. J. received by the adminis- trators whom Z. represented: — ^Held, that al- though M. formerly sued as personal represen- tative of E. B., and now sued as personal repre- sentative of W. J., the action was in substance a second proceeding for the same matter under the same alleged title, and that proceedings must be stayed until the costs of the old suit had been paid. Martin v. Beauchamp (_Earl), 25 Ch. D. 12,; 53 L. J., Ch. 1150 ; 49 L. T. 334 ; 32 W. K. 17— C. A. The next of kin of a testator instituted a suit for administration with a will annexed bearing date 1868, of which the sole executor and uni- versal legatee was the testator's wife, who pre- deceased him. In opposition, parties claiming to be legatees set up the contents of a later will alleged to have been executed in 1877 or 1878, but which could not be found. The Court of Appeal decided that there was not sufficient evidence of the contents of the second will, and their decision was affirmed in the House of Lords. A fresh suit for probate of the second will was then commenced by the executor of the testator and residuary legatee of the will of 1877-8, who had been the confidential solicitor of the deceased, and who had acted 'as solicitor for the legatees all through the litigation. This suit was founded upon fresh evidence of the con- tents and execution of the second will : — Held, that although the plaintiff had been privy to the prior action, an application to stay the proceed- ings generally could not be granted, but that the proceedings ought to be stayed until the costs of the plaintiffs in the prior action had been paid. Peters v. Tilly, 11 P. D. 145 ; 55 L. J., P. 75 ; 35 W. R. 183— Butt, J. Interlocutory Coats.]— Although mere non- payment of the costs of an interlocutory motion, which a plaintiff has been ordered to pay, is not per SB sufficient ground for ordering further pro- ceedings in his action to be stayed in cases where the party is acting vexatiously in withholding payment of costs, there is jurisdiction, upon application by summons, to stay proceedings until he has complied with the order for pay- ment. Neal, In re (31 Ch. D. 487), and Toungs, In re (31 Ch. D. 239), questioned. WicMam, In re, Marony v. Taylor, 35 Ch. D. 272 ; o& L. J., Ch. 748 ; 57 L. T. 468 ; 35 W. E. 525— C. A. Pending a summons before North, J., to whose court the action was attached, to stay all further proceedings until the plaintiff should have paid the costs which he had been ordered to pay, the action, at the plaintiff's instance, came on for^ trial before Kekewich, J., to whom it had been transferred for trial only. Defendant having taken the preliminary objection that the costs in question had not been paid, Kekewich, J., ordered the trial to stand over generally, with liberty to plaintiff to restore the action to the paper on payment of the costs : — Held, that the order ought to have postponed the trial, not until the costs should have been paid, but until the sum- mons before North, J., should have been dis- posed of : — Held, also, that North, J., had in the circumstances, rightly upon the summons ordered proceedings to be stayed until the plaintiff had complied with the order for payment of costs. Ii. Where a plaintiff is in contempt through breach of an order for payment of the costs of an application in the action, the court will, at the instance of the defendant, upon the action being called on for trial, stay all further pro- ceedings until the plaintiff has cleared his con- tempt. Neal, In re, Weston v. Neal, 31 Ch. D. 437 ; 55 L. J., Ch. 376 ; 54 L. T. 68 ; 34 W. E. 319— V.-C. B. Where a jsarty prosecuting proceedings is in contempt for not paying costs, the proceedings will be stayed. Toungs. In re, Boggett v^ Bevett, 31 Ch. D. 239 ; 55 L. J., Ch. 371 ; 54 L. T.50 ; 34 W. R. 290— Pearson, J. When Application to be Made.] — An application for payment prior to the case being called on is not necessary. Neal, In re, Weston V. Neal, supra. iii. E'rivolOTis and Vexatious Actions. Innate power of Court.] — The Queen's Bench Division has an innate and inherent authority to- dismiss or stay a frivolous or a vexatious action. This authority is distinct from the authority conferred on it by Ord. XXV. r. 4, which is limited to pleadings which are frivolous or 1435 PEA.CTICE AND PLEADING. 1436 vexatioas or otherwise objectionable. JBlaii' v. Cordner, 36 W. B. 64— D. Tlie Probate Division has, apart from Ord. XXV. r. 4, an inherent jurisdiction, in common with other courts, to stay proceedings which are frivolous and vexatious, and an abuse of the process of the court. Willis v. Beauchamp (Earl'), 11 P. D. 59 ; 55 L. J., P. 17 ; 54 L. T. 185 ; 34 W. B. 357— C. A. An action was brought to obtain revocation of letters of administration granted in 1798, the plaintiff claiming to represent the next of kin of the intestate, and the defendants being the representatives of the deceased administrator : — Held, that, having regard to the lapse of time, the fact that the defendants did not and could not succeed to the administration sought to be revoked, and the other circumstances of the case, the action was frivolous and vexatious, and must be dismissed. li. Statute of Limitations — Striking out Statement of Claim.] — The plaintiff sued in the Chancery Division to recover estates as heir-at- law of J. L., who died intestate, seised in fee and inpossession thereof, in 1816. The plaintiff alleged that on J. L.'s death J . T. wrongfully took posses- sion ; that the solicitors of J. L. knew the address of the heir-at-law, who resided in America, and were about to communicate with him, but that J. T. persuaded them not to do so, and to deliver to him the deeds and evidence showing J. L.'s title, including a deed of compromise by virtue of which he had obtained possession ; that by reason of the premises the heir and the persons claiming under him had remained ignorant of their title till 1886, and that the fraud could not with reasonable diligence have been discovered sooner. The plaintifE had previously commenced an action in the Queen's Bench Division to recover the same estates, the statement of claim in which merely alleged his title as heir-at-law, but contained no allegations of fraud to take the case out of the Statute of Limitations. The defendants applied to strike it out, as showing no cause of action. The plaintifE then, after the regular time for amendment, applied for leave to amend, and exhibited a proposed amended statement of claim containing allega- tions of concealed fraud. The Queen's Bench Division refused leave to amend, and struck out the statement of claim and dismissed the action on the ground that no cause of action was shown. The plaintifE then commenced this action in the Chancery Division, the allegations of fraud in the statement of claim being nearly the same as those in the proposed amendments in the Queen's Bench Division, but meeting some of the points in which those amendments had been observed upon by the judges as defec- tive. The defendants moved that the statement of claim might be struck out and the action dismissed : — The court held that the inducing the solicitors to deliver the deeds to J. T. was a concealed fraud, which would prevent the operation of the statute, and that, the court not being satisfied on the evidence that tbe allegations of fraud were fictitious, the action must be allowed to proceed ; but held by the Court of Appeal that, independently of the general orders, the court has jurisdiction to stay vexatious actions ; that the conclusion to be drawn from the whole of the materials before the court was that the allegations of fraud were made without any reasonable ground, and that the statement of claim, assuming its allegations if true to show a cause of action, ought to be struck out and the action dismissed as an abuse of the process of the court. Lawrence v. Norreys iLord), 39 Ch. D. 213 ; 59 L. T. 703— 0. A. iv. Abuse of Process. Action for Trivial Amount.] — The court re- fused to set aside, as an abuse of the process of the court, a writ of summons for 3Z. lis., due for goods sold : — Semble, an action for 'any sum not less than 40s. is not beneath the dignity of the court. Hannay v. Graliam, 12 L. E., Jr. 413— Q. B. D. Action instituted without Authority,]— The ground on which the court in a proceeding before itself will stay proceedings in an action instituted without authority in the name of a third party is that it has jurisdiction to prevent an abuse of its own process. London and Blacliwall Railway v. Cross, 31 Ch. D. 354 ; 55 L. J., Ch. 313 ; 54 L. T. 309 ; 34 W. R. 201— C. A. V, In other Cases. Executors, Actions by— Probate of Will.]— A testatrix, having indorsed and delivered a bill of exchange to her bankers for collection at matu- rity, died before the bill became due, and her executors, before probate of the wiU was granted, sued the bankers for a return of the bill or its value. The defendants were always willing to pay over the proceeds of the bill to the plaintiffs upon production of probate : — Held, that all proceedings in the action ought to be stayed until the plaintiffs obtained probate. Webi v. AdUns (14 C. B. 401) followed. Tarn v. Commercial Banliing Company of Sydney, 12 Q. B. D. 294 ; 50 L. T. 365 ; 32 W. R. 492— D. See also cases ante, cols. 798, 799. On Bankruptcy. ] — See Bankktiptcy,XVIII.,2. On Winding up of Companies. 1 — See Compant, XL 4. Separate Actions against several Defendants — Stay pending Trial of one Action.]— /Sec Colledge v. Pike, post, col. 1444. Fending Appeal to House of Lords or Court of Appeal.]— Sse Appeal, L, II. 7. 0. Pabticulaes. i. In vrhat Cases. Definite Sum Claimed — BTot Account merely.] — Where a plaintifE claims to recover a definite sum made up of a number of items he will be ordered to give particulars of demand, though-he will not be ordered to do so if he only claims an account. BlacTtie v. Osmaston, 28 Ch. D. 119 ; 54 L. J., Ch. 473,; 52 L. T. 6 ; 33 W. R. 158- C. A. The plaintiffs by their statement of claim alleged that they and their testator had paid sums of money under a contract of suretyship under which the defendant was also liable, 1437 PRACTICE AND PLEADING. 1438 and that, after deducting the contributions re- ceived from other quarters, the balance paid by them was 16,233^. ; that the defendant had paid nothing, and was liable to pay to the plaintiffs one half of this balance, and the plaintiffs claimed payment of 8,116^. ■ The defendant, be- fore putting in his defence, applied for an order that the plaintiffs might give particulars of the sums making up the 16,233Z. : — Held, that as the plaintiffs did not ask merely for an account, but claimed payment of a definite sum, they must give particulars of demand. lb. Claim for Account — Particulars of Eeoeipts.] — It was alleged by counter-claim to a redemp- tion action that the mortgage comprised : (1) certain commission ; .(2) a, sum also secured by bills of exchange ; (3) a sum due on an open account, and that the iriortgagee had received divers sums in respect of the bills of exchange and on the open account. The mortgagee counterclaimed for an account and foreclosure or sale. Particulars of the sums received by him on the bills of exchange and the open account were ordered to be given. Kemp v. GoUlerg. 36 Ch. D. 505 ; 56 L. T. 736 ; 36 W. E. 278— North, J. Payment into Court — Apportionment.] — See ante, col. 1426. False Imprisonment — Seasonable and Proba- ble Cause.] — The plaintiff sued the defendant for having wrongfully made and signed an order, stating that the plaintiff was a person of un- sound mind, in consequence of which the plaintiff had been assaulted and removed to a lunatic asylum and kept there against his will ; and he also claimed damages for the libel con- tained in such order. The defendant, in his defence, pleaded (inter alia) reasonable and probable cause for believing the plaintiff to have been a person of unsound mind, and fit to be detained under care and treatment : — Held, that the allegation of reasonable and probable cause was an immaterial allegation, and that the defen- dant could not be ordered to give particulars thereof. Gate v. Torre, 54 L. T. 515— C. A. Libel — Publication.] — In an action for libel brought by the plaintiff as director of a company against the defendants, a committee of the shareholders in the company, for statements con- tained in a report drawn up, and alleged to be ■maliciously published by them, the defendants had obtained, after the pleadings had been closed, an order for particulars of the occasion of any publication by them to persons other than share- holders : — Held, that the defendants were not entitled to such particulars, sinc^. the publica- tion complained of clearly included publication to others than shareholders, though not expressly so stated, and sufficiently complied with the requirements of pleading as laid down under Ord. XIX. r. 4. Roselle v. Buelianm (16 Q. B. D. 656) distinguished, as applicable only to actions for slander. Oouraud v. Fitigerald, 37 W. E. 55— D. Affirmed 37 W. E. 265— C. A. Defence that Libel true in Substance and in Fact — Newspaper.] — Defendanb pub- lished articles alleging that the plaintiff, who was governor of Mauritius, had been charged by members of the council with sending to the colonial office garbled reports of their speeches. The articles were also alleged by the plaintiff to impute that he had in fact transmitted such garbled accounts. An action for libel having been brought, the defendant pleaded that the alleged libels were true in substance and in fact : — Held, that the plaintiff was entitled to further and better particulars, it not being clear whether the defence meant that what was charged against the plaintiff had been truly reported, or . that what was reported to have been charged was in fact true. Hennessy v. Wright, 57 L. J., Q. B. 594 ; 59 L. T. 795 ; 36 W. E. 878— C. A. Slander — Names of Persons to whom Slander uttered.] — In an action for slander the court ordered the plaintiff, upon a sammons taken out by the defendant before delivery of the defence, to give particulars of the names of the persons to whom the alleged slander was uttered. Roselle V. Suelianan, 16 Q. B. D. 656 ; 55 L. J., Q. B. 376 ; 34 W. E. 488— D. A statement of claim alleged that T., " at the request and by the direction of the defendant, falsely and maliciously spoke and published of and concerning the plaintiff " certain slanderous words, which were set out : — Held, that the defendant was entitled to particulars of the persons to whom the words were uttered. Brad- hury V. Cooper, 12 Q. B. D. 94 ; 53 L. J., Q. B. 558 ; 32 W. E. 32— D. When particulars are required to be given of the names of persons who may have heard the defendant utter certain slanders in a public room, an order that the plaintiff is to deliver " the best particulars he can give of the persons present " when the slanders were uttered is correct, and will not be varied by the com-t. Williams v. Ramsdale, 36 W. E. 125 — D. Highway — Acts of Dedication.] — In an action to restrain trespass on a road, the defendants pleaded that it was a highway, and were ordered to amend their defence so as to show the mode or title in or under which they claimed that the road had become a highway. The defendants amended by alleging that the road had for many years been used by the public as of right and was a highway, having been dedicated to the public by the plaintiff and her predecessors in title or some of them. An order was then made that the defendants should deliver to the plaintiff full particulars of the nature of all acts of dedi- cation relied on by the defendants, and if the defendants claimed by acts of dedication other than permissive user, particulars of such acts of dedication, with dates, and by whom made. The defendants appealed: — Held, that under the present system the court will oblige a party to give such information as to the nature of his case as is requisite to prevent his opponent from being taken by surprise at the trial, but that the order made went too far, and that the proper order was that if the defendants relied on any specific acts of dedication, or specific declarations of. intention to dedicate, whether alone or jointly with e\^idence of user, they should set forth the nature and dates of those acts or declarations, and the names of the persons by whom they were done or made. Spedding Y.-Mtapatrick, 38 Ch. D. 410 ; 58 L. J., Ch. 139 ; 59 L. T. 492 ; 37 W. E. 20— C. A. Infringement of Trade Mark — Particulars of 1439 PRACTICE AND PLEADING. 1440 Names of Persons Deceived.] — In an action to restrain infringement of trade mark, the plaintiff alleged, by his statement of claim, that " divers persons " had been thereby induced to purchase the defendant's goods as the plaintiff's. After defence, the defendant took out a summons that plaintiff might give the names of the persons so induced to purchase : — Held, that defendant was entitled to the order. Humphries v. Taylor Drug Company, 39 Oh. D. 693 ; 59 L. T. 177 ; 37 W. E. 192— Kekewich, J. Breaches of Trust — General Allegations.] — Where in an administration action, the plaintiff alleged that the defendant, one of the executors, in various ways had misapplied parts of the rents and profits of the leaseholds, and thereby injured the plaintiff and committed breaches of trust, and the plaintiff specified one misapplica- tion of a sum of 25Z. : — On summons by the defendant, the court made an order striking out the general allegations unless the plaintiff fur- nished particulars within seven days. Anstice, In re, Anstice v. Hibell, 54 L. J., Ch. 1104 ; 52 L. T. 572 ; 38 W. B. 557— V.-C. B. Alleged False Entries in Books.] — A com- pany which had bought the business of the defendants, and employed them to manage it, brought an action against them for an account of what was due from them under a guarantee that the profits should amount to a certain yearly sum. The statement of claim alleged that the defendants had made false entries in the books for the purpose of making their working ex- penses appear less than they had been, and so relieving themselves of liability under the guarantee. The defendants obtained an order for the plaintiffs to furnish particulars of the false entries alleged. The plaintiffs set out a list of the items complained of transcribed from the books, with references to the parts of the books where they were found. The defendants applied for further and better particulars : — Held, that as an entry might be wrong in different ways, the mere specification of the entries complained of did not give the defen- dants sufficient information of the nature of the case they had to meet, and that the plaintiffs must state shortly as to each item the general nature of the objection they made to it. New- port Slipway Dry Dock Company v. Paynter, 34 Ch. D. 88 ; 56 L. J., Ch. 1021 ; 55 L. T. 711 — C. A. Particulars in Probate Action. ] — See Will. ii. Practice. At what Period ordered — After Defence — Waiver of Eight to.]— The statement of claim, in an action by a principal against his .stock- brokers to open settled accounts, alleged fraud, and that the plaintiff was unable to give par- ticulars before discovery. An application by the defendants for particulars was ordered to stand over till after a defence had been delivered. A defendant by delivering a defence does not waive his ' right to particulars. Sacks v. Speilman, 37 Ch. D. 295 ; 57 L. J., Ch. 658 ; 58 L. T. 102 ; 36 W. E. 498— North, J. Before Defence.] - chanan, supra. ■ See Jtoselle v. £u- After Discovery.] — Where the defendant has the means of knowing the facts in dispute and the plaintiff has not, the defendant is not entitled to particulars until after he has given discovery. Millar v. Harper, 38 Ch. D. 110 ; 57 L. J., Ch. 1091 ; 58 L. T. 698 ; 36 W. E. 454 — C. A. The plaintiffs, who were the executors of a married woman, sued her husband to establish that a quantity of the furniture and other chattels comprised in an inventory which had been taken of the goods in the defendant's house, belonged to the separate estate of the wife. The husband applied for particulars of demand showing which chattels they claimed : — Held, that the application ought to stand over till the husband had made an affidavit as to which of the articles belonged to the wife. II. Of Fraud - Documents.] - 1452. - Application for Production of - See WJiyte v. Ahrens, post, coL Effect of, on Discovery.] — Ord. XIX. r. 6, which requires that where the party pleading relies upon any misrepresentation or fraud, he shall give particulars of it in his pleading, is a rule of pleading only ; and the generality of an allegation of fraud does not prevent discovery bo as to enable the plaintiff to plead the fraud in detail. Leitch v. Abbott, 31 Ch. D. 374 ; 55 L. J., Ch. 460 ; 54 L. T. 258 ; 34 W. E. 506 ; 50 J. P. 441— Per Bowen, L. J. Amendment of — Terms.] — In an action on a policy of marine assurance, the defence was that the loss was not caused by perils of the sea, and that the subject-matter of the policy, viz., two lighters in tow of a tug, was unseaworthy. Particulars of the unseaworthiness were de- livered, stating that the lighters were of im- proper construction for the purpose of being towed. Evidence as to the lighters was taken abroad on commission, and questions were asked as to the tug. Subsequently, at a time when the evidence of the captain of the tug could no longer be obtained, the defendant ap- plied for leave to amend the particulars, so as to state that the tug was of insufficient power, whereby the subject-matter of the polioy was rendered unseaworthy :— Held, that the amend- ment should be allowed on terms, as no injury would be caused to the plaintiffs for which they could not be compensated by costs. Clara- pede V. Commercial Union Association, 32 W. B. 261— C. A. d. Secukity for Costs. i. Persons resident Abroad. Plaintiff a Seafaring Man— No Fixed Eesi- dence.] — A seafaring man, whose family had a permanent residence within the jurisdiction, and who resides with them on his return from abroad, but who has himself no fixed residence^ will be ordered to give security for the costs of an action brought by him. Martin v. Russell, 21 L. E., Ir. 196— A^-C. One of several Plaintiffs coming within Juris- diction before Appeal.] — An action was brought by a mercantile lirm, all the members of which were in America, against a firm at Manchester. 1441 PRACTICE AND PLEADING. 1442 The defendants put in a defence and counter- claim, and then applied to the judge for an order for the plaintiffs to g;iTe security for costs. The plaintiffs filed an affidavit stating that they with other persons carried on business at Manchester, and that the firm there had assets amounting to 2,0OOZ. The judge refused the application. On the appeal the plaintiffs produced an affidavit stating that since the order one of the plaintiffs had come to Manchester for the purpose of carrying on the action : — Held, that the affidavit as to the property of the plaintiffs in England was ambiguous and was not suificient to support the order in the court below. But held, that as one of the plaintiffs had oomo to England since the order was made, although for a temporary- purpose, the defendants were not entitled to security for costs, and therefore the order must be affirmed. Redondo v. Chaytor (i Q. B. D. 453) followed. Ebrard v. Gassier, 28 Ch. D. 232 ; 5i L. J., Ch. 441 ; 52 L. T. 63 ; 33 W. R. 287— C. A. Petitioner— Solicitor's Bill, Order to Tax.] — A person resident out of the jurisdiction pre- sented a petition for taxation of a solicitor's bill of costs ; the court ordered the petitioner to give security for the costs of the matter and for the balance alleged to be due to the solicitor. Cornwall, In re, 15 L. K., Ir. 144 — M. R. Plaintiff Resident in England — Action in Ireland.] — Security for costs may be required from a plaintiff resident in England or Scotland. The practice of the Court of Chancery in this respect is not affected by the 71st section of the Supreme Court of Judicature Act (Ireland), 1877. Xiolwlson V. Wood, 15 L. R., Ir. 76— M. R, Foreigner Serving Notice of Motion in Action.] — The plaintiff obtained an injunction to restrain the defendants from parting with goods alleged to bear improperly the plaintiff 's trade-mark. The defendants, who were ship- owners, had no interest in the goods, which had only been put in their hands for transmission. S., a resident in America, who claimed to be owner of the goods, served notice of motion that he might be at liberty to reship the goods to a foreign port, and that if necessary he might be added as a defendant to the action : —Held, that S. must give security for the costs of the motion, for that whatever his position as to costs might be if and when he was made a defendant, he must on this motion be treated as a person resident abroad, coming forward to enforce a right, and stood in the position of a plaintiff. AjiolUnaris Company v. Wilson, 31 Oh. D. 632 ; 55 L. J., Ch, 665 ; 54 L. T. 478 ; 34 W. R. 537 — G.A. Counterclaim — Defendant out of Jurisdic- tion.] — Where a defendant residing oat of the jurisdiction sets up a counterclaim which amounts to an independent action, he may be ordered to give security to the plaintiffs for the costs of the counterclaim. Lahe v. Haseltirte, 55 L. J., Q. B. 205— D." Where a claim and counterclaim arise out of different matters, so that the counterclaim is really in the nature of a cross action, the defen- dant, if he is residing out of the jurisdiction, may be required to give security for the plain- tiff's costs of the counterclaim, and. if the only dispute remaining arises on the counterclaim, it is bbyond doubt right that he should be so re- quired. Sykes v. Sanc'i-doti, 15 Q. B. D. 423 ; 54 L. J., Q. B. 560 ; 53 L. T. 418- C. A. Security to Answer — Foreign State Plaintiff.] — The Court of Admiralty has power under section 34 of the Admiralty Court Act, 1861, to stay proceedings in an action in rem until the plaintiffs have given security to answer the defendants' counterclaim, even though the plaintiffs' ship, because it is owned by a foreign Government, is by the comity of nations privi- leged from arrest. The Newbattle, 10 P. D. 33 ; 54 L. J., P. 16 ; 52 L. T. 15 ; 33 W. R. 318 ; 5 Asp. M. C. 356— C. A. ii. Plaintiff a Trustee in Bankruptcy, Insolvency.] — The court will not require security for costs to be given by a plaintiff who sues as trustee in bankruptcy even where he is in insolvent circumstances. Denston v. AsMon (4 L. R., Q. B. 590), approved. The observations in Pooley'a Trustee v. Whetham (28 Ch. D. 38) dissented from. Cowell v. Taylor, 31 Ch. D. 34 ; 55 L. J., Ch. 92 ; 53 L. T. 483 ; 34 W. R. 24— C. A. Where the trustee of a bankrupt brought an action in his official name as the trustee of the bankrupt, and there was no evidence that the trustee was in insolvent circumstances, the court refused to require him to give security merely because he was suing in his official name. The insolvency of the plaintiff not being established, the court expressed no opinion whether the decision in Denston v. Asliton (4 L. R., Q. B. 590) was right or wrong. Pooley^s Trustee v. Whetham, 28 Ch. D. 38 ; 54 L. J., Ch. 182 ; 61 L. T. 608 ; 33 W. R. 423— C. A. iii. Action not for Plaintiff's Benefit. Order when made.] — On a motion to dismiss an action for want of prosecution (the plaintiff having omitted to give notice of trial within the proper time), or that the plaintiff might be ordered to give security for costs, the defendant in support of the application adduced evidence that the plaintiff was in insolvent circumstances, that he had no settled residence, that he had mortgaged his interest in the property which was the subject-matter of the action to his solicitor, and that there were charges on the property to its full amount. The costs for which the plaintiff was already liable in the action to the defendant were estimated at about 701., and the future costs at 501. The judge, being of opinion that the plaintiff was carrying on the action not for his own benefit, but for that of his solicitor, ordered the plaintiff to give security for costs to the amount of 2001., and directed the proceedings to be stayed in the meantime :— Held, on appeal, that the court would not interfere with the dis- cretion of the judge as to ordering security, but that the amount must be reduced to 1001. Semble, that such an order ought to be made only under very special circumstances. Wilmott, v. Freehold House Property Company, 52 L. T. 743 ; 33 W. R. 554— C. A. 3 A 1443 PEACTICE AND PLEADING. 1444 iv. Insolvency of Plaintiff. Beceiving Order.] — -The fact that a plaintiff is insolvent, and that there is a receiver of his assets, is not necessarily a ground for requiring him to give security for costs. Malcolm, v. Sodgldnson, (8 L. E. Q. B. 209) commented on. A receiving order, made under the Bankruptcy Act, 1883, does not divest the debtor of his pro- perty ; and what he recovers as plaintiff in an action is his property both legally and equitably, although he must, when he recovers it, hand it over to the oflScial receiver for the benefit of his creditors, if he does not pay or compound with them. Therefore the debtor, against whom a receiving order has been made, ought not merely on that ground to be ordered to give security for the costs of any action in which he may be the plaintiff. Rhodes v. Dawson, 16 Q. B. D. 548 ; 55 L. J., Q. B. 134 ; 34 W. E. 240— C. A. Insolvent Corporation — ^Receiver.] — A cor- poration, plaintiff in an action, cannot be required to give security for costs on the ground that a receiver of its property has been appointed by the court. JDa/rtmoutlh Hariour Commis- sioners V. Dartmouth Mayor, 55 L. J., Q. B. 483 ; 34 W. E. 774— D. Where Plaintiff a Trustee in Bankruptcy.] — See supra. V. Harried 'Women. Suing Alone.] — A married woman suing alone and having no separate estate, will not be ordered to give security for costs. Isaac, In re, Jacol V. Isaac, 30 Ch. D. 418 ; 54 L. J., Ch. 1136 : 53 L. T. 478 ; 33 W. E. 845— C. A. Suing by Next Friend- Next Friend In- solvent.] — A married woman who had brought an administration action by her next friend, in which an order had been made directing certain enquiries, was, on evidence that her next friend was a person of no means, directed to give security for costs. Thompson, In re, Stevens v. Thompson, 38 Ch. D. 317 ; 57 L. J., Ch. 748 ; 59 L. T. 427— C. A. vi. Fund in Court. Payment out to Successful Party — Judgment Reversed — Order on Solicitor to Repay.] — An action being dismissed at the hearing with costs, a sum of money which had been paid into court as security for the defendants' costs was ordered to be paid out to the solicitors for the defendants in part payment of the defendants' costs. The judgment was reversed by the Court of Appeal, and the costs ordered to be paid by the defendants. The plaintiffs asked for an order against the defendants' solicitors for repayment by them : — Held, that the court had no jurisdiction on the appeal to order the defendants' solicitors to refund the money, the solicitors not being present ; nor, semble, could such an order have been made if they had been served with notice of the application. Lydney and Wigpool Iron Ore Company v. Bird, 33 Oh. D. 85 ; 55 L. T. 558 ; 34 W. E. 749— C. A. e. Consolidation op Actions. Separate Actions by same Plaintiff against several Defendants for publication of same Libel.] — The plaintiff having brought an action against the defendant Pike, a newspaper pro- prietor and publisher, for publishing a libel iu his newspaper, and having also at the same time brought a separate action against each of sixteen other different defendants for publishing the same libel in their several newspapers, the judge at chambers refused an application on the part of all the seventeen several defendants for an order that all further proceedings might be stayed in all the said actions except the first above- mentioned action until the verdict should be given ; the said several defendants undertaking to be bound and concluded by the verdict iu the said test action, provided such verdict should be to the satisfaction of the judge who might try the same. On the hearing of an appeal, the court (1) refused to make an order to consolidate the said actions on the ground that, although the libel was the same in each case, yet the several publications and the circumstances attending them being different, the causes of action in the several cases were different ; but (2) they made an order that all further proceedi^s in all the said actions, save one to be selected by the plaintiff, be stayed pending the trial of such selected action, the ■ defendant therein to have seven days' time to deliver his defence after notice to him of such selected action ; and further that, if the plaintiff be dissatisfied with the verdict obtained on the trial of such action, he should be at liberty to select one other action for trial, the defendant therein having like time after notice to deliver his defence ; and further, the defendants by their counsel undertaking to be bound by the verdicts in the said selected first and second actions, that the plaintiff be at liberty to sign judgment against the defendants in all the remaining actions for the maximum amount of damages found by the jury. ColUdge V. Pihe, 56 L. T. 124— D. Action in Inferior Court— Cross Action in High Court — Plaintiffs.] — When an action is transferred from an inferior court and consolidated with a cross-action begun in the High Court, the plaintiffs in the action in the iuferior court will be placed in the position of plaintiffs in the consolidated actions, if they began the action in the inferior court before the cross-action in the High Court. The Never Despair, 9 P. D. 34 ; 5S L. J., P. 30 ; 50 L. T. 369 ; 32 W. E. 599 ; 5 Asp. M. C. 211— Haunen, P. S. P. The Bjorn, 9 P. D. 36, n. ; 5 Asp. M. C. 212, n. ; and Tlie Co. tan, 9 P. D. 35, n. ; 5 Asp. M. C. 212, n. /. Tbansfbr of Actions. On what Principles determined.] — Under s. 24, sub-s, 6 of the Judicature Act, 1873, and in the absence of consent to the contrary, a common law action tried in or transferred to another division is to be determined on the same common law principles as would have been applied to it in the Queen's Bench Division. The Gertrude, Tlie Baron Alerdare, 13 P. D. 105 ; 59 L. T. 251 ; 36 W. E. 616 : 6 Asp. M. 0. ' 315— per Fry, L.J. 1445 PRACTICE AND PLEADING. 1446 Common Law Sivision — Donatio mortis cansi.] — The Common Law Divisions have jurisdiction to entertain an action to establish a, donatio mortis causft, even where the legal right has not passed to the donee ; but in such cases the action is more properly instituted in the Chancery Division. Cassidy v. Belfast Banking Company, 22 L. E., Ir. 68 — Ex. D. Salvage — Admiralty Division.] — Although an action in whioh the sole question is a question of salvage may under Order XLIX. r. 3, be properly transferred to the Admiralty Division, such a transfer should not be ordered where there are other questions in the action capable of being tried by a jury. Ocean SteajrmliAp Com/pany v. Aiiderson, 33 W. E. 536— C. A. Administration Actions.] — An order for the transfer to the judge before whom an admin- istration action is pending of actions against the executors should not be made by the order for administration. Poole, In re, Poole v. Poole, 55 L. T. 56— North, J. An action may be transferred from the Com- mon Law Division under Ord. L. r. i, after an order for administration accounts has been made. Henderson v. Maxwell, 17 L. E., Ir. 225— V.-C. Transfer to Chancery Division — Counterclaim lor Specific Performance.] — An action will not be transferred from a Common Law Division to the Chancery Division merely because there is an equitable counterclaim, as, for, instance, one for specific performance of an agreement, unless there is some practical difficulty in determining the questions raised in the Common Law Division. Bridges v. Byas, 12 L. B., Ir. 377— Ex. D. In an action by a purchaser of land against the vendor for retcm of the deposit, the defendant counter-claimed for specific performance : — Held, that the action ought to be transferred to the Chancery Division. London Land Company V. Harris, 13 Q. B. D. 540 ; 53 L. J., Q. B. 536 ; 51 L. T. 296 ; 33 W. E. 14— D. Action hy mortgagee for Balance — Cross- action for an Account.] — The personal repre- sentative of a deceased mortgagee commenced an action in the Queen's Bench Division against the mortgagor for payment of the balance of moneys lent by the mortgagee and interest. Twelve days afterwards the defendant com- menced an action in the Chancery Division against ihe mortgagee's personal representative and heir-at-law claiming an account and pay- ment of the balance owing by the deceased and redemption : — Held, that the first action ought not to be transferred to the Chancery Division, as the accounts could be more conveniently taken before an official referee than before the chief clerk. Newbould v. Steade, 49 L. T. 649 — C. A. Action for Fartnership and other Ac- oounts.] — Where the plaintiff brought an action in the Queen's Bench Division, and his claim was to have an account taken of partnership dealings extending over a period of four , years, and to have the affairs of the partnership wound up, and also to have an account taken of moneys had and received by the defendant otherwise than under the partnership deed : — Held, that notwithstanding Old. XV. r. 1 (a), this action should be transferred to the Chancery Division for the purpose of having the partnership and other accounts taken, as the Queen's Bench Division had not suitable machinery for the taking of such accounts. Leslie v. Clifford, 50 L. T. 690— D. Transfer to and from County Court.] — See County Court, 3, 4. g. Discontinuance. What amounts to — Amendment of Claim — Fresh Cause of Action set up.] — The plaintiff, by his statement of claim, alleged that he was the proprietor of the copyright in a design representing an infant asleep upon a pillow, which was duly registered by him in 1879, and that the defendant had infringed such copyright, and he claimed an injunction to restrain the defendant. The design was re- gistered under the Fine Arts Copyrights Act, 1862 (25 & 26 Vict. c. 68). The defendant delivered a defence in which he alleged that, for certain reasons connected with registration, which he stated, the plaintiff was not the proprietor of the copyright in the design, and that the action was not sustainable. The plaintiff thereupon amended his claim by striking out the paragraph which alleged that he was the proprietor of the copy- right in a design, and substituting a statement that, in 1870, he caused to be registered at Stationers' Hall a certain book, of which a sub- sequent edition was published, in which was contained a drawing representing an infant asleep upon a pillow. The book was registered under the Copyright Act, 1842 (5 & 6 Vict. c. 45). More than eight days after the delivery of the amended statement of claim the defendant moved that the plaintiff might be ordered to pay the costs of the action up to the time of the delivery of such amended pleading, and also the costs of the motion, and that the action might be stayed until the payment of all such costs. He con- tended that what had been done by the plaintiff amounted to a discontinuance of his original action and the commencement of a new one : — Held, that the motion was altogether irregular, and must be refused with costs, as the proper course was for the defendant to have moved, under Ord. XXVIII. r. 4, within eight days after the delivery of the amended pleading, for a disallowance of the amendment, or allowance thereof subject to terms as to costs or otherwise, provision for the costs of such amendments being made by r. 13 of the same order. Bourne v. Coulter, 53 L. J., Ch. 699 ; 50 L. T. 321— Kay. J. Fayment into Court with Denial of Liability — Costs.] — In an action for breach of contract, in which the plaintiffs alleged several distinct breaches, the defendants, while denying all liability, paid into court in the alternative a sum by way of satisfaction of one alleged breach. The plaintiffs took out the sum so paid in, and gave notice that they accepted the same in full satisfaction of the causes of action in the state- ment of claim mentioned : — Held, that what the plaintiffs had done was equivalent to a discon- tinuance, that they were entitled to tax their costs under Ord. XXII. r. 7, and that it was not necessary for them also to give notice of discon- tinuance under Ord. XXVI. r. 1. Melllwraith 3 A 2 1447 PRACTICE AND PLEADING. 1448 V. Greev, U Q. B. D. 766 ; 54 L. J., Q. B. 41 ; 52 L. T. 81— C. A. Jurisdiction to order Defendant to Fay Costs.] — Upon an application by a plaintiff for leave under Ord. XXVI. r. 1, to discontinue an action, the court or judge has no jurisdiction to make the defendant pay any coste of a defence which, if undisputed, or if it had been found in the de- fendant's favour, would have disentitled the plaintiff from maintaining his action. Where a court or judge is expressly given a discretion as to costs, the exercise of such discretion cannot be delegated. Lamlton v. Parkinson, 35 W. E. 545— D. Costs — Effect of Payment into Court by De- fendant.] — On a summons under Ord. XIV. for the payment of a sum of money, the master ordered the defendant to pay money into court as to part of the claim, and gave leave to defend as to the remainder. After issue joined, the plaintiff discontinued the action. The taxing- master gave the defendant the whole costs of the action from the beginning. On appeal for review of taxation : — Held, that the costs were not governed by Ord. XXVI. r. 1, but were in the discretion of the court, under Ord. LXV. r. 1, and that the plaintiff was entitled to his costs up to the time of payment into court. Langridge V. Cffl7»p&eZn2 Ex. D. 211) distinguished. Siich- ling V. GaU, 36 W. E. 175— D. Of part of Claim — Striking out Pleading.] — See Brooking v. Maudslay, post, col. 1505. h. Confession op Defence. Plaintiff signing Judgment for Costs.] — An action was brought by a member of a club " on behalf of himself and all other members " of such club, " except the defendant," against the committee of the club, charging them with breaches of trust in making profits out of con- tracts entered into by them on behalf of the club. The defence, in addition to other matters, stated that since action brought a meeting of the club had been held at which the contracts had been ratified by every member except the plaintiff, and that resolutions expressing confi- dence in the committee had been passed. The plaintiff delivered a confession of defence, and signed judgment for his costs of the action. The defendants moved to set aside the judgment and dismiss the action : — Held, that the plaintiff could not avail himself of Ord. XXIV. r. 3, as the above grounds of defence did not amount to a waiver of the other pleas. Foster v. Gamgee, (1 Q. B. D. 666,) distinguished. Harrison v. Abergavenny (^Marquis'), 57 L. T. 360— Kay, J. Defendants delivered a further defence of matter arising since the delivery of the defence. The plaintiffs delivered a confession of the amended defence, and signed judgment for costs against the defendants. The judgment for costs was set aside on terms of the defendants with- drawing their amended defence. Bridgetown Waterworks Company v. Barbados Water Supply Company, 38 Ch. D. 378 ; 57 L. J., Ch. 1061 ; 59 L. T. 314 ; 36 W. E. 852— North, J. i. Dismissal foe want of Peosbcution. Consent Order— No Bar to Fresh Action.] — An order by consent, in the absence of an agree- ment to compromise the cause of action, to dismiss an action for want of prosecution is no bar to the institution of a fresh action. In this respect the practice of the old Court of Chancery remains unchanged. Magnus v. National Bank of Scotland, 57 L. J., Ch. 902 ; 58 L. T. 617 ; 36 W. E. 602— Kay, J. The plaintiffs in an action, wherein the same parties were respectively plaintiffs and defen- dants, and the same relief was sought as in the present action, had paid the defendants' costs and consented to an order, made on summons taken out by the defendants, dismissing the action for want of prosecution. The plaintiffs subsequently brought the present action, where- upon the defendants moved that the question of law might first be tried whether the plaintiffs were not estopped from bringing the present action by reason of the consent order made in the previous action : — Held, that the defendants were not entitled to the order asked for. lb. Default in Proceeding to trial — ^Verdict set Aside.] — An action, in which the place of trial was out of Dublin, was tried at the Spring Assize, 1883, when a verdict was directed for the defendant. This verdict was set aside on the ground of misdirection, and a second trial took place at the Spring Assizes, 1884, resulting in a verdict directed for the plaintiff, which was also set aside, and a third trial ordered in the Michael- mas Sittings, 1884. The plaintiff not having served notice of trial for the next ensuing assizes, the defendant moved to dismiss the action for want of prosecution, contending that the case fell within Ord. XXXV. rr. 2, 4 :— The court re- fused the motion. Semble, the only remedy open to a defendant imder such circumstances is trial by proviso under the old practice. Foott v. Ben%, 16 L. E., Ir. 247— Ex. D. Abortive Trial.] — A defendant is entitled to have an action dismissed for want of prosecu- tion after an abortive trial if the plaintiff fails to proceed. National Bank v. Canning, 16 L. R., Ir. 444— Q. B. D. Cause not entered for Trial.] — A plaintiff gave notice of trial, but did not enter the cause for trial within six days after the notice of trial was given, in accordance with Ord. XXXVI. r. 16 : — Held, that the defendant was entitled to move to dismiss the action for want of prosecu- tion. Crick V. Hewlett, 27 Ch. D. 354 ; 53 L. J., Ch. 1110 ; 51 L. T. 428 ; 32 W. E. 922— Pearson, J. Effect of Obtaining Order for Security for Costs — Counterclaim.] — An order obtained by the defendants for security for costs, with a stay of proceedings until the security is given, does not prevent the defendant from "moving to dis- miss the action for want of prosecution. Upon an application by a defendant who has delivered a counterclaim to dismiss an action for want of prosecution, he is entitled in default of reply to judgment on his counterclaim. London Moad Car Company v. Kelly, 18 L. R., Ir. 43— Q. B. D. 1449 PRACTICE AND PLEADINa. 1450 j. Inspection of Peopeety. In Patent Actions.]— &e Patent, III. 2. As between co-Plaintiffs or co-Defendants.] — Ord. L. i: 3 provides that it shall be lawful for the court or a judge, upon the application of any party to a cause or matter, and upon such terms as may be just, to make any order for (among other things) the inspection of any pro- perty or thing, being the subject of such cause or matter, or as to which any question may arise therein. Claims being made against two de- fendants severally iu the same action ; — Held, that under the above-mentioned rule inspection could not be granted to one defendant of pro- perty belonging to another defendant when there was no right in question as between them in the action. Brown v. WatJmis (16 Q. B. D. 125) explained. Shaw v. Siii/tJi, 18 Q. B. D. 193 ; 56 L. J., Q. B. 174 ; 56 L. T. 40 ; 35 W. R. 188— C. A. Timber on Ship in Harbour.] — The court, under Ord. LI. r. 3, gave the plaintiff leave to inspect a ship lying in harbour, on which it was alleged that certain timber, part of the subject- matter of the action, had been placed by the defendant for removal. Morris v. Howell, 22 L. E., Ii-. 77— Q. B. D. Authority to dig up Soil.] — Under rule 3 of Ord. L. the court has power to make an in- terlocutoiy order before trial, giving liberty to a plaintiff to enter upon land belonging to the defendant, and to excavate the soil thereof for the purposes of inspection. Lumb v. Seauviont, 27 Ch. D. 356 ; 53 L. J., Ch. 1111 ; 51 L. T. 197 ; 32 W. K. 985— Pearson, J. Inspection by Trinity Masters before Trial.] — Before the hearing of an action an application was made under 24 Vict. c. 10, s. 18, by the plaintiffs, that two Trinity masters should inspect the lights of the defendants' ship: — Held, that the application was premature, and ought to be refused. The Victor Covacemch, 10 P. D. 40 ; 54 L. J., P. 48 ; .52 L. T. 632 ; 5 Asp., M. C. 417— Butt, J. Inspection of Documents.] — See Discoveey. A. Accounts and Inquieies. Seference of Matters of Account. ] — See Aebi, TEATION. Application for, by Accounting Party.] — Ord. II. r. 5, and Ord XIV. are not confined to cases where the account claimed is an account to be rendered by the defendant, but they apply to cases where the plaintiff will himself be the accounting party — e.g., where a personal repre- sentative seeks to have the usual administration accounts taken. Molony v. Molony, 21 L. R., Ir. 91- V. C. No Jurisdiction to Order whole Matter to be tried in Chambers.] — The plaintiflf, an equitable mortgagee, brought an action for foreclosure or sale against several other mortgagees, insisting that under the circumstances she was entitled to priority over the defendants. The alleged priority of the plaintiff to the defendants depended on questions of notice and fraud. On the appli- cation of the plaintiff, Kay, J., on summons under Ord. XXXIII. r. 2, made an order directing an inquiry what were the respective priorities of the incumbrances of the plaintiff and the re- spective defendants, and an account of what was due to the incumbrancers respectively. One of the defendants appealed : — Held, on appeal, that this order must be discharged, for that Ord. XXXIII. r. 2, was not intended to autho- rise the sending the whole of the questions in a cause to be tried in chambers, but only to autho- rise the court to direct, before trial, accounts and inquiries which would otherwise have been directed at the trial. Garnham, v. Skipper, 29 Ch. D. 566 ; 52 L. T. 239— C. A. Useful only if Case established at Trial.] — A mortgagee of shares of the proceeds of the residuary real and personal estate of a testator who died in 1872, brought an action in 1884 for the administration of the estate, alleging mis- application by one of the trustees of moneys raised by mortgage of parts of the real estate, and advanced to the same trustee of parts of the testator's estate on equitable mortgage. The plaintiff applied, under Ord. XV. i. 1, for the common accounts and inquii-ies in an adminis- tration suit, and also for inquiries as to mort- gages of the real estate, and as to advances to the trustee : — Held, that only common ac- counts and inquiries could be directed on an application under the rule, and not accounts and inquiries, the right to which depended on the plaintiff establishing a case for them at the hearing, and that the special inquiries therefore could not be directed. Gyhon, In re, Allen V. Taylor, 29 Ch. D. 834 ; 54 L. J., Ch. 945 ; 53 L. T. 539 ; 33 W. R. 620— C. A. Held, fm-ther, that Ord. XV. r. 1, must be read in connexion with Ord. LV. r. 10, which makes it not obligatory on the court to order a general administration, and that the Vice- Chan- cellor was right in refusing the common accounts and inquiries in a case where, having regard to the period elapsed since the testator's death, it was uncertain whether a general administration order would be found at the hearing to be de- sirable, and where if the plaintiff at the hearing established a case of breach of trust, accounts and inquiries would have to be directed, going over in part the same ground as the common accounts and inquiries. Ii. Eight to Stay Proceedings — Insufficiency of Assets.] — Order made staying untU further order, with liberty to apply, the prosecution of accounts and inquiries directed by a judgment in the nature of a foreclosure judgment (unless the defendants would give security for the costs of the proceedings), on the ground that it was shown to be highly probable that the amount due to the plaintiffs would greatly exceed the value of the property, and that the costs of further proceedings would be thrown away. Exchange and Hop Warehouses v. Land Finan- ciers' Association, 34 Ch. D. 195 ; 56 L. J., Ch. 4 ; 55 L. T. 611 ; 35 W. R. 120— North, J. Possession of Premises by Father or Mother as Bailiff for Children.]— Sf Infant, III. Foreclosure Action — Judgment.] — A plaintiff in a foreclosure action, where there is no pre- 1451 PRACTICE AND PLEADING. 1452 liminary question to be tried, may obtain by summons in chambers, under Bules of Supreme Court, 1883, Ord. XV. rr. 1 and 2, an order for an account and foreclosure — that is to say, the usual foreclosure judgment. Smith v. Davies or Davies v. Sm.ith, 28 Ch. D. 650 ; 54 L. J., Ch. 278 ; 52 L. T. 19 ; 33 W. E. 211— Chitty, J. But see JBlaJie v. Harvey, post, col. 1491. See fuHTicr, Mortgage, VII. 1. *. Bedemption Action — Preliminary Account — Form of Order.] — A general redemption decree will not be made upon a summons for pre- liminary accounts under Ord. XV. r. 1. Where, therefore, a writ had been issued in an action against mortgagees in possession, but no other pleadings had been delivered, and minutes of i udgment were drawn up upon a summons under Ord. XV. r. 1, directing the necessary accounts, and further directing that the defendants' costs should be taxed, and the amount of such costs, as well as the certified amount found due upon t he accounts, paid by the plaintiff to the defen- dants within six months, and in default that the action should be dismissed : — Held, that the order must be for accounts only, and that the farther directions, which made the order equivalent to a decree, must be strucli: out. Clover V. Wilts and Western Benefit Building Society, 53 L. J., Ch. 622 ; 50 L. T. 382 ; 32 W. K. 895— V.-C. B. Order for Account not referring to Settled Account.] — By the rules of a benefit society it was provided that the accounts should be audited, and that after they had been audited and signed by the auditors, the secretary and treasurer should not be answerable for any mistakes, omis- sions, or errors that might afterwards be proved in them. An action for an account was commenced by two shareholders, on behalf of themselves and all other the sliareholders, against the secretary. No pleadings were delivered, and on a motion for a receiver being made the defendant sub- mitted to an order for an account of all moneys and property of the society come to his hands, without any direction as to settled accounts. The defendant carried in a complete account, and the plaintiffs carried in a surcharge. The defendant then set up certain accounts which had been audited under the rules, as vouchiag his account for the period over which they ex- tended. The point was brought before the judge, who was stated to have expressed his opinion that the audited accounts must be treated as conclusive. The plaintiffs then applied for a direction that in taking the accounts the audited accounts might be disregarded, on the ground that as the order did not save the settled accounts, they could not be attended to. The application was refused, and the plaintiffs appealed: — Held, that the audited accounts ought not to be disre- garded, and that the appeal must be dismissed ; but the dismissal was prefaced by a statement of the opinion of the court, that the plaintiffs, in taking the accounts under the order, were at liberty to impeach the audited accounts for fraud. Holgate v. Shutt, 27 Ch. D. Ill ; 53 L. J., Ch. 774 ; 51 L. T. 433 ; 32 W. E. 773. — C. A. Under an order directing an account, and not referring to settled accounts, the accounting party may set up settled accounts, though the order does not direct that settled accounts shall not be disturbed, and the opposite party may impeach them, though the order does not ex- pressly give him liberty to do so. Holgate v. Shutt, 28 Ch. D. Ill; 54 L. J., Ch. 486; 51 L. T. 673 ; 49 J. P. 228— C. A. Opening Settled Accounts — Allegations of Fraud — ParticuIarB.] — The plaintiffs employed the defendants to purchase goods, as their agents, at the lowest possible prices. The plaintiffs sued for an account, and in their statement of claim alleged that the defendants had purchased goods at prices higher than the current prices, and had secretly received from the vendors allowances or commissions. The charges against the defendants were stated in general terms, no particulars being mentioned. The defendants denied the charges, and pleaded a settled ac- count: — Held, by Cotton, L.J., aflirming the decision of Bacon, V.-C. (diss. Fry, L. J.), on an application for production of documents, that the plaintiffs were entitled thereto without giving particulars of fraud. Whyte v. AJirens, 26 Ch. D. 723 ; 54 L. J., Ch. 145 ; 50 L. T. 344 ; 32 W. E. 649— C. A. Held, by Fry, L.J., that the allegations of fraud in the pleadings, not being sufficient to enable the plaintiffs to open a settled account, discovery ought to be refused until the allega- tions had been made sufficient. li. Lapse of Time.] — In a foreclosure action a defence and counterclaim were put in claiming payment of what should be found due to the de- fendant on taking the accounts, but not expressly claiming to open the accounts or specifying im- proper charges. An application to amend at the hearing was refused. The court, however, per- mitted the parties to give evidence as to the accounts, on the ground that it might be the duty of the court, under Ord. XXVIII. r. 1, to make all such amendments as should be necessary for determining the real question between the parties, and having heard the evidence without ordering amendment, the court treated the pleadings as amended, and decided on the evidence. Ward V. Sharp, 53 L. J., Ch. 313 ; 50 L. T. 557 ; 32 W. R. 584— North, J. Accountant's Fee — Percentage.] — Where an accountant had been employed by consent of all parties to assist the chief clerk in takiag very complicated accounts, and had taken them before the 19th January, 1884, he was held entitled to his percentage fee under the order of October, 1875, though the certificate was not signed till after the order of January, 1884. Hutchinson, In re, Hutchinson v. Norwood, BO L. T. 486 ; 32 W. E. 392— C. A. Effect of Order upon Powers of Trustees.] — A. by will appointed three trustees, one of whom was B., the tenant for life, and directed that any vacancy in the number of trustees should be filled up within one year after it occurred. One trustee disclaimed, the other died after some years, leaving B. surviving. An action was commenced, asking for the general execution of the trusts of the will. The court, under Ord. LV. r. 3, sub-s. 10, ordered only certain special inquiries, among which was an inquiry whether new trustees had been appointed, and whether any or what steps ought to be taken for their appointment. Pending this inquiry B. appointed 1453 PEACTICE AND PLEADING. 1454 a new trustee. The plaintifis now moved to restrain the funds being handed to him and his acting as trustee : — Held, that the special in- quiry made it the duty of B. not to fill up the appointment without the approval of the court, but that the power was not destroyed ; all that was necessary was for B. to appoint a person whom the court would approve, and it not being alleged that the new trustee was an improper person, the court would not interfere with the appointment, and it was not necessary formally to sanction it. Sail, In re, Hall v. Sail, 51 L. T. 901— Pearson, J. In Administration Action.] — See Exectjtoe AND Administrator, VI. I. Mandamus, Injunction, and Eecbiveb. i. Effect of Judioatxire Act, 1873, s. 25, sub-s. 8. £qtiitable Execution — " Just and Convenient."] — A judgment debtor had lands in Surrey subject to an equitable mortgage ; and his judgment creditor obtained an order for a receiver of these lands. This order was not registered. After the appointment of the receiver the debtor sold the lauds to a purchaser for value without notice : — Held, that under the circumstances of the case it was just and convenient for the court to ap- point a receiver within the Judicature Act, 1873, s. 25, sub-s. 8. Pope, In re, 17 Q. B. D. 743 ; 55 L. J., Q. B. 522 ; 55 L. T. 369 ; 34 W. R. 693 — C. A. Under the general power to appoint receivers given by the Judicature Act, 1873, s. 25, sub-s. 8, and having regard to Rules of Supreme Court, 1883, Ord. XLII. rr. 4 and 28, the court has jurisdiction to enforce a judgment for payment of money into court by a defaulting trustee, by the appointment of a receiver of his equitable interest in property in this country ; and order accordingly where, from the debtor being out of the jurisdiction, service of a writ of attachment could not be effected. Coney, In re. Coney v. Bennett, 28 Oh. D. 993 ; 54 L. J., Ch. 1130 ; 52 L. T. 961 ; 33 W. E. 701— Chitty, J. An order was made against the defendants in an action, who were defaulting trustees, for the payment of money into court. The defendants having f aUed to comply with such order, an application was made by the plaintiffs that a writ of attachment might issue against them. At the defendants' instance, however, the court made an order allowing payment by weekly in- stalments. L., one of the defendants, had made an affidavit on that occasion stating that all the property he possessed was the furniture in his house. It subsequently transpired that L. had executed bills of sale affecting the furniture ; but that the plaintiffs in other proceedings, had successfully disputed the validity of such bills of sale. An application was accordingly made on behalf of the plaintiffs for the appointment of a receiver of the furniture by way of equit- able execution. For the defendant L. it was contended that the legal and proper remedy of the plaintiffs was by sequestration, and that the court had no jurisdiction to appoint a receiver : — Held, that, although under r. 4 of Ord. XLII. of the Rules of Court, 1883, sequestration was the appropriate remedy, yet under s. 25, sub-s. 8 of the Judicature Act, 1873, the court had jurisdiction to appoint a receiver if it ap- peared just or convenient so to do ; and that, in the present case, it was just and convenient to appoint a receiver, and that an order must be made accordingly. Whiteley In re, Whiteley v. Learoyd, 56 L. T. 846— Kay, J. Deceased's Estate.] — The Judicature Act, 1873, s. 25, sub-s. 8, enables any judge of the High Court to appoint a receiver of a deceased's estate (before grant of probate or administra- tion), notwithstanding the absence of lis pen- dens ; but applications for any such order, being on the way to probate proceedings, are properly made in the Probate Division, and if made else- where will not be encouraged. Parlier, In re, Dearing v. Brooks, 54 L. J., Ch. 694 — Chitty, J. Mortgagee.] — A legal mortgagee, being in possession of the mortgaged property, applied to the court for the appointment of a receiver : — Held, that although the mortgagee might, under the Conveyancing Act, 1881, appoint a receiver without coming to the court, it was more desir- able, where an action was pending, that the appointment should be made by the court under the Judicature Act, 1873. Tillett v. Nixon, 25 Ch. D. 238 ; 53 L. J., Ch. 199 ; 48 L. T. 598 ; 32 ^y. B. 226— Pearson, J. Under s. 25, sub-s. 8, of the Judicature Act, 1873, a mortgagee in possession is entitled to the appointment of a receiver, notwithstanding that he has been paid all his interest and costs out of rents received by him while in possession, and that he has surplus'rents in his hands. Mason V. Westohy, 32 Ch. D. 206 ; 55 L. J., Ch. 507 ; 54 L. T. 526 ; 34 W. R. 498— V.-C.B. Judicature (Ireland) Act, s. 28, sub-s. 8.] — The 3rd section of 19 & 20 Vict. c. 77, has been repealed by the 28th section of the Judicature (Ireland) Act, sub-s. 8, and, therefore, the court may appoint a receiver on foot of any judgment mortgage, notwithstanding that the rental of the estate is less than lOOZ. per annum. The court will, under special circumstances, appoint a receiver where less than one year's interest is due. Martin's Estate, In re, 13 L. R., Ir. 43 — Land Judges. In an action to recover damages for obstruct- ing a watercourse, and for an injunction, the plaintiffs obtained a verdict for nominal damages. The defendant having continued the acts of obstruction complained of, the court granted an injunction. Agnew v. McDowell, 14 L. R., Ir. 445— Ex. D. ii. Prerog-ative Mandamus. — See MANDAMUS. iii. Injunction. — See INJUNCTION. iv. Beceiver, a. In wlmt Cases. Where Interpleader Issue directed. ]---An interpleader issue being ordered to try the right to goods seized in execution, the court or a judge may, under the Judicature Act, 1873, s. 25, sub-s. 8, and Ord. LVII. r. 15, order that, in- stead of a sale by the sheriff, a receiver and 1455 PRACTICE AND PLEADING. 1456 manager of. the property be appointed, Howell V. Dawson, 13 Q. B. D. 67— D. In Partnership Actions.] — See Paetnbeship. Beceiver appointed by way of Equitable Execution.]— &e Execution, 5. Appointment of — Effect on Executor's Be- tainer.] — See Executor and Adiiinisteatoe, 1.4. Under Bailway Companies Act.] — See Rail- way. Action by Debenture Holders.' pant, IV. 3, e. -See COM- Application for after Foreclosure absolute.] — See Moetgagb, "VII. 1, J. Appointment by Mortgagee.] — See MoET- GAGE, VI. 2. Judgment against Married Woman — Separate Estate — Bemuneration.] —In an action against a married woman alleged to be possessed of separate estate, no defence was delivered, and the master found tliat she was entitled to separate property vested in trustees and subject to certain charges. The plaintiff was appointed receiver without security of the residue of the income of the separate estate, after payment of the prior charges, the plaintiff undertaking to act without remuneration. M' Garry v. White, 16 L. E., Ir. 322— Q. B. D. Granted before Probate.] —<5ec Moore, In Goods of, ante, col. 798. ;3. Tlie Application. Ex parte.] — Ex parte applications for a receiver ought not to be granted even after judgment, except in cases of emergency. Lucas V. Harris, 18 Q. B. D. 127 ; 56 L. J., Q. B. 15 ; 55 L. T. 685 ; 35 W. R. 112— C. A. Originating Summons.]- Semble, that a re- ceiver may be appointed under an originating summons. Gee v. Bell, 35 Ch. D. 160 ; 56 L. T. 305 ; 35 W. E. 805— North, J. In an administration action, commenced by originating summons, a receiver may (in a proper case) be appointed immediately after the service of the summons and before any order for administration has been made. Franclie, In re, Dralie v. Franelte, 57 L. J., Ch. 437 ; 58 L. T. 305— North; J. A mortgagee issued a writ asking for the usual order for foreclosure, and moved for the appointment of a receiver, and on the motion being heard, a receiver was appointed. A state- ment of claim was delivered, but the mortgagor having become bankrupt, the plaintiff withdi'ew his claim for payment : — Held, that the plaintiff should have proceeded by originating summons. The court made the usual foreclosure order, but directed the taxing-master to allow such costs as the plaintiff would have been entitled to if he had proceeded by originating summons and no more. Barr v. Harding, 58 L. T. 74 ; 36 W. E. 216— Kay, J. Service of Summons on Foreigner out of Juris- diction. ]—&'« Weldon v. Gounod, post, col. 1483. Evidence of Property.]— Where a plaintiff obtained judgment and issued execution, and the sheriff returned nulla bona, the court will not appoint a receiver on the ground that since the return, the defendant has been found to be possessed of a patent the value of which did not appear from the evidence before the court. Smith V. Carter, 52 J. P. 615— D. Form of Order— Security.]— Where a judg- ment creditor, in an action for equitable execu- tion, obtained the appointment of a receiver for the purpose of creating a charge upon the debtor's property subject to prior incumbrances, but not for the purpose of entering into posses- sion or receiving the rents and profits, the receiver was not required to give security, the plaintiff and the receiver undertaking not to act without the leave of the court. Hewctt v. Murray, 54 L. J., Ch. 572 ; y2 L. T. 380— V.-C. B. 7. Practice. Payments by — Eeoeipts to.] — A receiver is only justified in paying the person named in the order for payment, or on a power of attorney duly executed by him. Express authority for payment in any other mode must be shown by the receiver, on peril of being disallowed credit therefor in vouching his accounts. The solicitor having carriage of the proceedings has not, as such, and in the absence of special authority in that behalf, power to give a valid receipt for moneys ordered to be paid by a receiver to his client. Browne's Estate, In re, 19 L. R., Ir. 183 — C. A. What he can Beceive — Fund in Discretion of Trustees — Order against Trustees for Pajrment.] — An order was made, in an action in' a county court, appointing a receiver to receive the interest of a sum of money in the hands of trustees, and ordering the trustees to pay a specific amount out of the interest to the receiver half-yearly until the judgment in the action should be satis- fied. The trustees were trustees of a will, by which they were directed to set apart and invest the sum in question, and were authorised, at their absolute discretion, fi-om time to time, and at such time or times as they should think proper, to pay or apply the whole or any part of the income to or for the benefit of the judgment debtor in such a manner in all respects as they should think proper. The trustees applied for a prohibition : — Held, that as it depended on the discretion of the trustees whether anything should be paid to the judgment debtor, the re- ceiver could not be entitled to receive the interest in their hands, and that an order for payment could not be macje against the trustees, who were strangers to tlie action, and therefore the county court judge had exceeded his jurisdiction, and the proper remedy was by prohibition. Reg. V. Lincolnshire County Court Judge, 20 Q. B. D. 167 ; 57 L. J., Q. B. 136 ; 58 L. T. 54 ; 37 W. R. 174— D. Bemuneration — Partnership Assets.] — See Prior V. Bagster, ante, col. 1336. 1457 PEACTICE AND PLEADING. 1458 Ifeglect of Duty — Fees — Discharge — Costs.] — When a receiver was discharged, owing to gross dereliction of duty, the order dipallowed his fees and poundage on all accounts not passed within the prescribed time, and directed him to pay interest on the balance (if any) from time to time in his hands, and to pay the costs of the motion to discharge him, of his own discharge, and of appointing his successor. St. George's Estate, In re, 19 L. 11., Ir. 5(i(i — Monroe, J. Costs of — Priority.] — See Batten v. Wedg- wood Coal and Iron Company, ante, col. 431. Objections to — Action for.] — Where items have been included in a receiver's bill of costs, which are charges for work done outside the scope of the receivership, objection must be made to their being included in the taxation at the time ; and no action will lie for the subse- quent recovery of the money due on such items. Terry v. Dubois, 32 W. E. 415— D. Change of Beceiver — Bankruptcy of Mort- gagor.] — A receiver and manager had been ap- pointed on an ex parte application by the plain- tiff in a foreclosure action under a mortgage of brewery premises. The mortgagor, the defen- dant, afterwards became bankrupt on his own petition. The official receiver opposed a motion by the plaintiff for the continuance of the original receiver and manager, contending that he ought to be substituted : — Held, that an order must be made coniirming the previous appoint- ment, and continuing the person then appointed as receiver of the rents and profits of the premises comprised in the mortgage, and as manager of the business, he to be at liberty to use any of the vats, fixed motive machinery, and other property comprised in the mortgage, but nothing else. Deacon v. Arden, 50 L. T. 584 — Pearson, J. Substitution of Liquidator on Winding- up of Company.]— &(; ante, col. 422. Action to restrain Eeceiver appointed in another Action.] — A person who is prejudiced by the conduct of a receiver appointed in an action by way of equitable execution, ought not, vpithout leave of the court, to commence a fresh action to restrain the proceedings of the receiver, even though the act complained of was beyond the scope of the receiver's authority, but ought to make an application for such relief as he is entitled to in the action in which the receiver was appointed. Searle v. Choat, 25 Ch. D. 723 ; .53 L. J., Ch. 506 ; 50 L. T. 470 ; 32 W. K. 397— C. A. Interference with — Contempt of Court.] — See Eelmore v. Smith, ante, col. 1338. 9. PLEADINGS— &e post, eol. 1497 et seq. 10. THIRD PARTIES- NOTICE CLAIMING CONTRIBUTION OR INDEMNITY. a. In what Cases. Must arise from Express or Implied Con- tract — Sight to Damages Insufficient. ] — ^A land company had an agreement from B. to demise to them certain lands for building purposes, the agreement to be voidable as to all land not actually demised if the buildings were not com- pleted within a certain time. B. agreed to sell part of the land to a railway company subject to the building agreement. The time for build- ing having expired without the buildings being erected, the railway company took possession and treated the building agreement as at an end. The land company thereupon brought their action against the railway company, alleging that an agreement had been made between them and B. for extension of the time, and that the railway company bought with notice of it, and seeking to restrain the railway company from interfering with the land till they compensated the land company, pursuant to the Lands Clauses Act. The railway company applied for leave to serve B. with a third-party notice on the ground that he sold to them free from all incumbrances, except the building agreement, and without notice of the extension of time, and was bound to indemnify them against any claim the land company could establish : — Held, that in order to bring a case within Ord. XVI. r. 48, it is not enough that if the plaintiff succeeds the de- fendant will have a claim for damages against the third party, but the defendant must have against the third party a direct right to indemnity as such, which right must — generally, if not always — arise from contracts express or implied, and that here there was no ground for implying such a contract. Birmingham Land Co. v. London and North-Western Railway, 34 Ch. D. 261 ; 54 L. J., Ch. 956 ; 55 L. T. 699 ; 35 W. R. 173 — C. A. Marine Insurance — Underwriters — Suing and Labouring Clause.] — The defendant insured his ship under a policy containing the usual suing and labouring clause. In an action to recover for work alleged to have been done and expenses incurred by the plaintiffs for the defendant, at his request, in respect of attempting to save the ship during the continuance of the policy : — Held, that the defendant was not entitled to bring in the underwriters as third parties under Ord. XVI. X. 48, because they did not, by the suing and labouring clause, contract to in- demnify the defendant in respect of any con- tract made by him with the plaintiffs. Johnston V. Salvage Association, 19 Q. B. D. 458 ; 57 L. T. 218 ; 36 W. R. 56 ; 6 Asp. M. C. 167— C. A. Eestrictive Covenant — Constructive Notice.] — In 1857, A. granted a lease of a house for a term of ninety-three years, with a restrictive covenant against the user of the house for any art, trade, or business. The term granted by the lease became vested in B., and in Oct. 1883, B. granted a lease of the house to C. for twenty- one years, with an express permission that he might use the house in his profession of teaching music and singing, and with the usual covenant for quiet enjoyment. There was constructive notice of the original lease in the under-lease, but C. had no personal knowledge or notice of the re- strictive covenant. A breach of this covenant having been committed by C, the devisees in trust of A. brought an action against B. and C, claiming an injuncti'on and damages. By his defence C. claimed to be indemnified by B. against all expenses and damages occasioned by 1459 PEACTICE AND PLEADING. 1460 the breach of the covenant for quiet enjoyment, and served a third- party notice upon B., to which he appeared : — Held, that C. was not entitled to any relief against his co-defendant B., inasmuch as the claim was not one for " contribution or indemnity " within the meaning of rule 55. Tritton v. Banltart, 56 L. J., Ch. 629 ; 56 L. T. 306 ; 35 W. R. 474— Kekewich, J. Against Defaulting Trustee.] — A. and B.were trustees of the maiTiage settlement of X. and Y.; some of the investments were sold and the pro- ceeds placed to the credit of A., who advanced the moneys in breach of trust to the husband X. ; in an action commenced by the children of X. and Y. against A. and B. for such breaches of trust, A. and B. gave each other cross notices of claim for contribution : — Held, that Ord. XVI. r. 55, enabled the court to make an order for contribution in such a case. Sawyer v. Saioyev, 28 Ch. D. 601— Chitty, J. Uisrepresentation on Contract for Sale — Auctioneer.] — An action by a vendor against the purchaser of a house and premises, and the auctioneer who advertised and sold them, for specific performance of the contract or damages. The purchaser stated that he was induced to purchase the property in consequence of the ad- vertisement in the newspapers inserted by the auctioneer, representing thatthe purchase-moneys would be allowed to remain on mortgage. The representation was alleged to have been un- authorised, and the purchaser applied by sum- mons under Eules of Supreme Court, 1883, Ord. XVI. r. 55, for leave to serve his co-defen- dant, the auctioneer, with a notice claiming in- demnity fi-om liim against the claim of the vendor : — Held, that this was not a case for indemnity within r. 55, and that the summons must be dismissed. Pontifex v. Foord (infra) followed. Catton v. Bennett, 26 Ch. D. 161 ; 53 L. J., Q. B. 685 ; 50 L. T. 383 ; 32 W. E. 485— Kay, J. Covenant to Repair — Underlessee.] — The plaintiff sued the defendant for breach of a covenant to repair contained in a lease of a dwelling-house for a term of twenty-one years from Michaelmas, 1861. The defendant ob- tained leave to serve, and served a third-party notice, claiming contribution or indemnity from a sub-lessee to whom he had let the premises from Midsummer, 1869, for the remainder of the original term, less ten days. The under-lease contained a covenant to repair, which was in terms precisely similar to those of the covenant in the original lease, and for breach of which the defendant claimed relief against the sub-lessee : — Held, that, inasmuch as the terms of the cove- nant to repair must in each case be construed with reference to the age and character of the premises at the time of the demise, the covenant in the under-lease could not be construed as a covenant to indemnify the defendant against or to perform the covenant in the original lease ; that the defendant's claim was not one for contribution or indemnity from the third party within Ord. XVI. r. 52, and that, therefore, no directions as to trial could be given under that rule. Pontifex v. Mord, 12 Q. B. D. 152 ; 53 L. J., Q. B. 321 ; 49 L. T. 808 ; 32 W. R. 316 — D. Damage to Caigo — Charterer against Owner —Warranty.] — Where a defendant is not entitled to claim contribution against a person not a party to the action, he can only be entitled, under Ord. XVI. r. 48, to issue a, third-party notice to such person, where under a contract, expressed or implied, he is entitled to indemnity over against him. Therefore, where the defen- dants were sued for damages to the plaintiffs' goods while on board a vessel of the defenda,nts on a certain voyage, by reason of the vessel being not seaworthy for the voyage : — Held, that the defendants were not entitled to a third- party notice, under Ord. XVI. r. 48, to the persons of whom the defendants had hired the vessel with a warranty that she was tight, staunch, strong, and fitted for the service. Speller v. Bristol Steam Katigation Compamy, 13 Q. B. D. 96 ; 53 L. J., Q. JB. 322 ; 50 L. T. 419 ; 32 W. B. 670 ; 5 Asp. M. C. 228— G. A. Forged Transfer of Shares — Transferee.] — The plaintiff, who was the owner of stock in a public company registered in her name, ascer- tained that it had been transferred to F. by virtue, as she alleged, of a forged transfer. She brought an action against the company to have her name reinstated in the books of the com- pany. The company obtained leave to serve F. with a claim for indemnity : — Held, without deciding that the claim for indemnity was valid, that leave to serve F. was rightly given. Speller v. Bristol Steam Navigation Compatiij (13 Q. B. D. 96), distinguished. Carslwre v. Nortli-Eastem Railway, 29 Ch. D. 344 ; 54 L. J., Ch. 760 ; 52 L. T. 232 ; 33 W. E. 420— C. A. Mortgage of Policy of Insurance — ^Valid Dis- charge to Company — Joinder of Mortgagor.] — M., a married woman, on the 6th November, 1879, effected a policy of insurance on her own life for 3,000L M. and her husband, on the 19th of October, 1880, mortgaged the policy to T., to secure the repayment of 2,534Z. 7s., with interest at 6Z. per cent. In the mortgage deed there was a power of attorney by M. and her husband to T., but there was not any special receipt clause empowering T. to give a vaiid discharge to the assurance society. The deed also contained a provision that if the covenants were fulfilled, T. should not call in the money before the 1st of May, 1890. T. gave notice to the assurance society of the mortgage. M. died, and probate of her will was granted to her husband. At the date of her death 2,762?. 12«. 6d. was due on the policy, and there was due to T., for principal and interest, 2,618?. 18s. Id., besides a sum of 281Z. for costs due to T. as solicitor for M. and her husband. T. called upon the insurance com- pany to pay him the whole of the moneys due on the policy, but they refused to do so unless M.'s husband, as her personal representative, joined in the receipt, which he declined to do, except upon terms which T. rejected ; and the company having persisted in their refusal, T. brought an action against them, and the com- pany moved for leave to bring in M.'s husband as a third party : — Held, that the company was entitled to have M.'s husband brought before the court, and that they should be at liberty to lodge in court the amount due on the policy. Terush V. Eyhyn, 18 L. E., Ir. 45— Q. B. D. 1461 PEACTICE AND PLEADING. 1462 Indemnity after Service of Writ.] — Leave may be given to a defendant to serve notice of claim for indemnity on a third party, under Rules of Supreme Court, 1883, Old. XVI. i. 48, whether the indemnity has been given after or before action brought. Eduon Electric Light Company v. Holland, 33 Ch, D. 497 ; 56 L. J., Ch. 124 ; 55 L. T. 587 ; 35 W. E. 178— V.-C. B. J. Practice. Service of ITotice ont of Jurisdiction.] — By Ord. XI. r. 1, service out of tbe jurisdiction of a, . . . notice of a writ of summons may be allowed by the court or a judge whenever . . . (g) any person out of the jurisdiction is a neces- sary or proper party to an action properly brought against some other person duly served within the jurisdiction : — Held, that Ord. XI. r. 1 (g), does not apply to service out of the jurisdiction of a third-party notice on a third party domiciled or ordinarily resident in Scot- land. Speller v. Bristol Steam Navigation Company, supra. Leave whether necessary — To Co-defendant.] — ^Under r. 55 of Ord. XVI., a defendant need not obtaiu the leave of the court or a judge before issuing to a co-defendant a notice claim- ing contribution or indemnity from him. But it will be open to the co-defendant, after he has been served with the notice, to move to set aside the service. Towse v. Loveridge, 25 Ch. D. 76 ; 53 L. J., Ch. 499 ; 49 L. T. 466 ; 32 W. K. 151— Pearson, J. Application for Leave— Time — Delay.] — An application for a defendant for leave to issue a third-party notice under rule 48 of Ord. XVI. of the Eules of Court, 1883, should be made promptly ; the time contemplated by the Order as that within which the application is to be made being, as a general rule, within the time limited for delivering the defence, and at the latest before the pleadings are closed. Birming- Jiam Land Company v. London and Noo-tli- Western Railway, 56 L. T. 702— Chitty, J. Points for Consideration of Court.] — On the application for leave the court will not go into any question as to the merits of the action or the validity of the claim for indemnity. Edison Electric Light Company v. Holland, 33 Oh. D. 497 ; 56 L. J., Ch. 124 ; 55 L. T. 587; 35 W. R. 178— V.-C. B. In giving leave to a defendant to serve notice of a claim for contribution or indemnity on a third party, the court will not consider whether the claim is a valid one, but only whether the claim is bon^ fide, and whether if established it will result in contribution or indemnity. Car- shore v. North-Eastern Railway, supra. Circumstances under which Third Parties not added as co-Defendants.] — An action was brought against a railway company to compel them to re-transfer stock which the plaintiffs alleged to have been transferred out of their names by means of forged transfer deeds. The transferees were not made parties, but the com- pany, under Ord. XVI. r. 48, served them with third-party notices, claiming indemnity. The company in their defence, set up all the grounds- of defence that could be relied on against the plaintiff's claim. Some of the third parties desired to defend, and liberty was given to them to appear at the trial and take such part as the judge should direct. Two of them appealed from this order, asking that they might be at liberty to deliver a defence, appear at the trial, and put in evidence, and cross-examine the plain- tiff's witnesses : — Held, that the third parties were not, under the old practice, necessary parties to the action, and that as the company had raised all proper grounds of defence, and was bon§, fide defending the action, the order gave the third parties all reasonable protection, and that the appeal must be dismissed, for that while, on the one hand, the court ought to take care that the third parties had full opportunity of seeing that the questions in the cause were fairly tried, it ought, on the other hand, to taie care that the plaintiffs were not embarrassed and put to expense by unnecessarily allowing persons, who were not necessary parties to the action, to take all the same steps as if they had been made defendants. Barton v. London and NoHh- Western Railway, 38 Ch. D. 144 ; 57 L. J., Ch. 676 ; 59 L. T. 122 ; 36 W. E. 452— C. A. What Defences open to Third Party.] — When a third party has been given leave to defend under Ord. XVI. r. 53, he is at liberty to raise any defences which the defendant might have raised against the plaintiff's claim, although the defen- dant may, by admission or otherwise, have debarred himself from raising any particular defence. Callendar v. Wallingford, 53 L. J., Q. B. 569 ; 82 W. E. 491— D. Application for directions always necessary.] — Where a defendant serves a co-defendant with a third-party notice but omits to take out a summons for directions under Ord. XVI. r. 52, he will not be entitled to any relief as against him. Tritton v. Banhart, 56 L. J., Ch. 629; 56 L. T. 306 ; 35 W. E. 474— Kekewich, J. Non-admission of Liability by Third Party — Liberty to appear at Trial.] — Where in an action for damages in respect of alleged injury to the plaintiff's premises, the defendant, claiming to be entitled to indemnity over against a person not a party to the action, had served such person with a third-party notice under Ord. XVI. 1. 48, and he had appeared thereto, the court, upon a summons for directions taken out by the defendant, gave the third party, who did not admit his liability, liberty to appear at the trial of the action and take such part as the judge should direct, and be bound by the result, and ordered the question of his liability to indemnify the defendant to be tried at the trial of the action, but subsequent thereto. In case a third party served with notice appears and admits his liability to indemnify, the court will give him leave to defend the action. Coles V. (%i>il Service Supply Association, 26 Ch. D. 529 ; 53 L. J., Ch. 638 ; 50 L. T. 1U-, 32 W. E. 407— Kay, J. Judgment on Application — Against Married Women.] — Under Ord. XVI. i. 52, judgment against a third party who has appeared pursuant to a third-party notice, but, at the hearing of 1463 PRACTICE AND PLEADING. 1464 an application by the defendant for directions, declines to state any defence, may be ordered, if the judge is not satisfied that there is any question proper to be tried as to the liability of the third party. The rule is consistent with the Judicature Act, 1873, s. 24, sub-s. 3, and the Judicature Act, 1875, s. 21, and is not ultra vires. Such judgment under the rule may, since the Married Women's Property Act, 1882, be ordered against a married woman, third party, as a feme sole, declaring her separate estate chargeable even in respect of a liability created before that act. GlouoestersJdre Banking Com- jjany v. PhilVqis, 12 Q. B. D. 533 ; 53 ' L, J., Q. B. 493 ; 50 L. T. 360 ; 32 W. R. 522— D. Eight of Third Party to Judgment before Payment.] — A defendant wlio is entitled to an indemnity from a co-defendant upon a special agreement is entitled to sign judgment against his co-defendant for the amount of his (the defendant's) liability before he has actually paid anything in discharge of it. English and Scottish Trust Company v. Flatan, 36 W. R. 238— D. Counterclaim by Third Party against Plain- tiff.] — The court has no power to give a third party, who has been served with notice by a defendant under Ord. XVI. r. 48, leave to file a counterclaim against the original plaintiff. Eien v. Weardale Iron and Coal Companij, 28 Ch. D. 333 ; 54 L. J., Cli. 384 ; 51 L. T. 726 ; 33 W. R. 241— C. A. Discovery by and against. I. 1 ; II. 1. -Sec Discovery. Costs of Third and Fourth Parties.] — D. cove- nanted by deed that he and his heirs or assigns would pay S. a royalty on coals, which should be got from land purchased from S., and which should be shipped for sale. D. did not execute the deed. In an action on the covenant, D.'s representative brought in his assigns as third parties, and they brought in fourth parties : — Held, that there was no jurisdiction to throw the costs of the third and fourth parties on the plaintiffs. 'Witham v. Vam:, 32 W. R. 617- H. L. (E.) Affirming, 44 L. T. 718— C. A. 11. DEMURRER, PROCEEDINGS IN LIEU OF. Effect of Judicature Acts and Rules.] — De- murrers ai'e in form abolished, but Ord. XXV. takes notice of three forms, in which the object of demurrers may be obtained ; first, by raising on the pleadings a question of law, so that the parties may have it decided quickly ; secondly, by raising the question on a pleading whether it discloses any reasonable cause of action or answer, in which case the court may order the pleading to be struck out, not necessarily dis- posing of the whole action ; and, thirdly, in case an action or'def ence is shown by the pleadings to be frivolous or vexatious, then the court or a judge can dismiss the whole action, or order it to be stayed, or judgment to be entered accordingly as may be just. Burstall v. Bcyfus, 2G Ch. D. 35 ; 53 L. J., Ch. 565 ; 50 L. T. 542 ; 32 W. R, 418— Per Selborne, L. 0. Jurisdiction of Court.] — Ord. XXV. r. 4, enables the court to deal in an easy and summary manner with demurrable actions, and also affirms the inherent power of the court to protect itself from the abuse of its procedure by the bringing of frivolous and vexatious actions. Metrcfpolitan Banh v. Pooley, 10 App. Cas. 210 ; 54 L. J., Q. B. 449 ; .53 L. T. 163 ; 33 W. R. 709 ; 49 J. P. 756— H. L. (E.). The Probate Division has, apart from Ord. XXV. r. 4, an inherent jurisdiction, in common with other courts, to stay proceedings which are frivolous and vexatious, and an abuse of the process of the court. Willis v. Beaucha/mp CEarl}, 11 P. D. 59 ; 55 L. J., P. 17 ; 54 L. T. 185 ; 34 W. R. 357— C. A. Based on Pleadings, not on Evidence.] — Appli- cations under Ord. XXV. r. 4, must be tried upon the allegations contained in the pleadings, and evidence in support of the applicant's case is not admissible. Jiepullic of Peru v. Penman Guano Company, 36 Ch. D. 489 ; 56 L. J.. Ch. 1081 ; 57 L. T. 337 ; 36 W. R. 217— Chitty, J. When Jurisdiction exercised.] — Although proceedings under rr. 2 and 4 of Ord. XXV. take the place of demurrers in the sense that the court is enabled, when it sees no reasonable ground of, action or defence, to put an end to the action or defence, the court is not bound to regard the case with the same strictness as under the old practice on demurrer, the court now having more regard to the reasonableness or unreasonableness of the claim or defence. Dadswell v. Jacobs, 34 Ch. D. 278 ; 57 L. J.. Ch. 233 ; 55 L. T. 857 ; 35 W. R. 261— C. A. A pleading will not be struck out under Ord. XXV. r. 4, on the ground that it discloses no reasonable cause of action, unless it is frivolous. Demurrers have not been abolished only in name, and the above rule is not to be construed so as to allow applications under it to take their place. Batthyany, In re, Batthyany v. Walford, 32 W. R. 379— Chitty, J. The power given by Ord. XXV. r. 4, of order- ing any pleading " to be struck out on the ground that it discloses no reasonable cause of action," will be exercised where in the opinion of the court, there is no reasonable prospect that the case raised by the pleading will succeed at the hearing of the action ; secus, where the pleading, though it might under the former practice have been open to demurrer, presents a substantial case. llcpnVlic of Pom v. Peruvian Oiiano Coiiipiini/, supra. Claim Disclosing no Seasonable Cause of Action — Malicious Prosecution.] — The plaintiff was charged by the defendants under 6 & 7 Vict, c. 96, s. 4, with having published a libel know- ing the same to bo false. At the preliminary stage of the proceedings the charge under s. 4 was withdrawn, but the prosecution for the minor offence under s. 5 of the same act was continued, and the plaintiff was committed for trial under the 5th section. An indictment was preferred against the plaintiff under the 4th section, and the jury found that the plaintiff issued the libel believing it to be tme. This verdict was held to be one of guilty under the 5th section, and, after respite of judgment and argument, the plaintiff was sentenced to two months' imprisonment without hard labour. 1465 PEACTICE AND PLEADING. 1466 The plaintiff brought his action for malicious prosecution under the Ith section of the above act, and set forth the above facts in his state- ment of claim, in which he alleged that the finding of the jury was an acquittal under the 4th section, under which he had been indicted. The defendants applied to have the statement of claim struck out as not disclosing any reasonable cause of action : — Held, that the statement of claim ought not to be struck out as disclosing no reasonable ground of action, and that where a statement of claim discloses some ground of action, the mere fact that the plaintiff is not likely to succeed on it at the trial is no ground for its being struck out. Boalir v. Holder, 54 L. T. 298— D. No action can be brought by a bankrupt for maliciously procuring his adjudication so long as the adjudication itself has not been set aside. Such an action may be dismissed as frivolous and vexations on summons under Ord. XXV. r. 4. Metropolitan Batik v. Pooley, supra. Entry on Plaintiff's Land — Specific Per- formance.] — A plaintiff set out certain building agreements in his statement of claim, and alleged that by reason of the defendant having wrongfully entered into possession of the plaintiff's land and building materials, he had been unable to carry out his agreements and had thereby suffered loss. The plaintiff claimed specific performance of the agreements and damages. A motion under Ord. XXV. r. 4, to strike out the statement of claim upon the ground that it disclosed no reasonable cause of action was dismissed. Soddington v. Rees, 52 L. T. 209— V.-C. B. Points of Law raised by Pleadings — ^Validity of Agreement — Hearing before Trial.] — An action had been brought to determine questions of disputed accounts in respect of the joint local and continental traffic of two railways. The validity of an agreement was disputed by the pleadings. The plaintiffs now moved under Ord. XXV. r. 2, that the points of law raised by the pleadings might be set down for hearing forthwith, and be disposed of before the trial of the action : — Held, that the application would be granted, as the case was a proper one for exercising the jurisdiction conferred upon the court by Ord. XXV. r. 2. London, Chatham, and Dover Bailn-ay v. Sonth-Eastern Railway, 53 L. T. 109— Chitty, J. "Point of Law" — Dismissal of Action with Costs.] — An action having been by the consent of the parties set down for hearing under Rules of Supreme Court, Ord. XXV. r. 2, upon a "point of law " raised by the defence, and the point having been decided in favour of the defendant, the judge, as the decision substantially disposed of the whole action, dismissed the action under r. 3, and with costs, by analogy to the former practice on demurrer. O'Brien v. Tyssen, 28 Oh. D. 372 ; 54 L. J., Ch. 284 ; 51 L. T. 814 : 33 W. B. 428— V.-C. B. S. P. Percival v. Dunn, 29 Ch. D. 128 ; 54 L. J., Ch. 572 ; 52 L. T. 320— V.-C. B. Time for Application — Amended Statement of Claim.] — A defendant who has put in a defence to an original statement of claim, cannot, when the plaintiff afterwards delivers an amended statement of claim, which alleges no new matter against him, apply to strike out the amended statement of claim, on the ground that it dis- closes no reasonable cause of action. Jenkins v. Bees, 33 W. R. 929— Pearson, J. Precedence over other Actions.]^ — Where, by consent of parties, an action has been set down for hearing under Ord. XXV. r. 2, before the trial, on a point of law, the decision of which will substantially dispose of the whole action, it is not entitled to precedence over other non- witness actions, but must take its place in the general list. Thorniley, In re, Woolley v. Thorniley, 53 L. J., Ch. 499 ; 32 W. R. 539— Pearson, J. 12. DISCOVERY,INSPECTION, AND INTER- ROGATORIES— iS« Discovbky. 13. REFERENCE TO ARBITRATION— -See Aebiteation. 14. TRIAL. a. Place of Trial. Local Venue— Highway Acts.] — The provisions of the Highways Act, 1835, s. 109, as to local venue are abolished by the Rules of Court, 1875, Ord. XXXVl. i. 1. Phelips v. Hadham Highway District Board, 1 C. & E. 67 — Coleridge, C.J. ' Action against Constable.] — Section 19 of 1 & 2 Will. 4, c. 41, by which, in all actions for anything done in pursuance of that act, the venue is to be local, applies only to such acts as a constable might at the date of the statute liave been called upon to perform ; the section therefore does not apply in the case of a constable acting under the Contagious Diseases (Animals) Act, 1878. Bryson v. Russell, 14 Q. B. D. 720 ; 54 L. J., Q. B. 144 ; 52 L. T. 208 ; 33 W. R. 34 ; 49 J. P. 293— C. A. Change of Venue.] — The court will not change a venue laid by a plaintiff unless a defendant can show some serious injury and injustice to his case by trying it at that venue. Shroder v. Myers, 34 W. R. 261— C. A. Amended Statement of Claim.] — A plain- tiff who wishes to name some place other than Middlesex as the place of trial must name it in the original statement of claim. If he omits to do so he cannot name it in an amended state- ment of claim ; and if he has named a place of trial in the original statement of claim, he cannot alter it in an amended statement of claim. Loclie V. White, 38 Ch. D. 308 ; 55 L. J., Ch. 731 ; 54 L. T. 891 ; 34 W. R. 747— C. A. — — Order causing Delay — Convenience.] — In an action for the specific performance of an agreement, wherein fraud and concealment connected with the conveyance of certain mines and property in the county of Cornwall were alleged, it appeared that the plaintiff resided at Wakefield, in Yorkshire, and most of the witnesses and the defendant in or within an easy distance of London, but that one of the most important 1467 PEACTICE AND PLEADING. 1468 witnesses, who was eighty years old, lived in Cornwall, and that the place of business of the Bolicitor who transacted the business connected with the conveyance was at Plymouth. The plaintiff in his statement of claim had fixed the venue at Exeter. On a motion by the defendant that the venue might be changed to Middlesex, on the ground of convenience and to save expense, and because the action was one which ought properly to be assigned to the Chancery Division, and contained points of law which would probably be referred from the assizes to London : — Held, that the venue must be changed to Middlesex, not because the action was a Chancery action, but on the gi-ound of convenience for the vdtnesses and of saving expense ; also that the necessary delay which must ensue was not in itself a sufficient reason for permitting the case to go to the assizes. Green V. Bennett, 54 L. J., Ch. 85 ; 50 L. T. 706 ; 32 W. K. 848 — Chitty, J. See Cardinall v. Cardin- ally infra. Action assigned to Chancery Division.] — Under Ord. XXXVI. r. 1, a plaintiff is entitled to lay the venue of an action in any place that he pleases, although it is specially assigned to the Chancery Division, and has been commenced in that division. Philips v. Beale, 26 Ch. D. €21 ; 54 L. J., Ch. 80 ; 50 L. T. 433 ; 32 W. R. 665 — C. A. See also Cardinall v. Cardinall, Powell V. CoVb, Old Mill Company v. Diildnfield Local Board, and Shafto v. Bolclww, Vauglian, and Co., infra. Entry at Assizes — Power of Judge at Assizes to Bemit to Chancery Division.] — In a patent action commenced in the Cliancery Division, the plaintiff named Manchester as the place of trial, and the action was set down for trial at Manchester Assizes. When the case came on for trial the judge of assize declined to try it, on the ground of pressure of business, and remitted it for trial in the Chancery Division : — Held, that this was not a sufficient ground for an order under Ord. XXXVI. r. 34, that the case might have been made a remanet, and that the order must be discharged, Fairiurn v. Souse- hold, 53 L. T. 513— C. A. J>. Mode op Teial. Order for Trial by Judge witli Jury.] — A party who desires that an action shall be tried with a jury must obtain an order to that effect ; and if the case falls within Ord. XXXVI. r. 6, the Master has no discretion but must make the order. Trower v. Law Life Assuranee Society, 54 L. J., Q. B. 407 ; 52 L. T. 888 ; 33 "W. R. 674— C. A. Time for Application for Trial by Jury — Entry of Cause for Trial.]— By Ord. XXXVI. r. 6, upon the application within ten days after notice of trial has been given, of any party for a trial with a jury of the cause, an order shall be made for a trial with a jury. Notice of a trial was given by the plaintiff, but the cause was not entered for trial by either party within the time prescribed by the rules, and the notice was there- fore no longer in force. The plaintiff gave a second notice of trial, entered the cause for trial on the same day, and then applied for a trial by jury : — Held (Manisty, J., dissenting) that under Ord. XXXVI. r. 6, the application for a jury was too late. Per Manisty, J. — The first notice of trial should, under the circum- stances, be regarded as countermanded by con- sent. The second notice of trial was therefore valid, and the application for a trial by jury was made in time within Ord. XXXVI. rr. 6, 16. Tonsley v. Seffer, 19 Q. B. D. 153 ; 56 L. J., Q. B. 656 ; 57 L. T. 481 ; 36 W. B. 48— D. An action for an injunction andaccount having been commenced, the plaintiff moved on the 11th Dec, 1885, for an interim injunction. An order was then made that the motion should stand over until the trial of the action, the plaintiff undertaking to set down the cause for trial forthwith, and deliver a statement of claim within ten days. The defendant gave an under- taking in the terms of the notice of motion. The notice of trial was given on the 12th Dec, 1885, the statement of claim was delivered on the 19th Dec, 1885, and the defence and counter- claim were delivered on the 4th Jan., 1886. On the same date plaintiff received notice of the defendant's intention to apply for a trial before a jury : — Held, upon the construction of the Rules of Court, Ord. XXXVI. r. 6, as amended by the Rules of Court of December, 1885, that the application was made too late, and that no case had been made out for the exercise of the dis- cretion to enlarge the time under the Rules of Court, 1883, Ord. LXIV. r. 7. Moore v. Beakin, 53 L. T. 858 ; 34 W. E. 227— Chitty, J. Bight to Trial by Judge and Jury — Discretion.] — Caases or matters, which previously to the passing of the Judicature Act could, without any consent of parties, have been tried without a jury, are excluded from the operation of Ord. XXXVI. r. 6, and the parties are, therefore, not entitled as of right to a trial with a jury. In such causes or matters an application for a trial with a jury must be made under Ord. XXXVI. r. 7, in which case it is in the discretion of the court or judge to grant the application. TJie Temple Bar, 11 P. D. 6 ; 55 L. J., P. 1 ; 53 L. T. 904 ; 34 W. R. 68 ; 5 Asp. M. C. 509— C. A. In an action in rem for necessaries for a ship the trial was directed to be before a judge at the assizes. The plaintiff applied for an order that the action should be tried with a jury, alleging that he was entitled under Ord. XXXVI. r. 6, to such an order as of right. The judge refused the application : — Held, that the action was not within Ord. XXXVI. r. 6, and that the applica- tion could only be made under r. 7 of that order, and therefore the judge would have a dis- cretion to grant the application. lb. Where, in an action brought in the Chancery Division to restrain a nuisance, either party applies for a trial by jury, he cannot claim a jury as a matter of right, but the application is one to the discretion of the court under Ord. XXXVI. r. 7 (a), and he has not even such prima facie right to a jury as to throw on the other side the burden of showing that the case can be tried as well without a jury. Timson v. Wilson, or Fanshawe v. London and Provincial Bairy Company, 38 Ch. D. 72 : 59 L. T. 76 ; 36 W. R. 418— C. A. The right of a defendant, under r. 6 of Ord. XXXVI., to have an issue of fact sent for trial by a judge and jury, is subject to the discretion 1469 PEACTICE AND PLEADING. 1470 of the court under rr. 4 and 6 of the same order ; and the court, in the exercise of such dis- cretion, will refuse to send the issue for trial by a judge and jury, if it does not appear desirable. Moss V. Bradburn, 32 W. E. 368 — Peai-son, J. An action which falls within one of the classes of actions which, by sect. 34 of the Judicature Act, 1873, are especially assigned to the Chancery Division, will not be sent for trial by a jury un- less it involves a simple issue of fact, the deter- mination of which will decide the action. If such an action depends on the determination of mixed questions of law and fact, it ought to be tried by a judge without a jury, and an order will be made for its trial by the judge of the Chancery Division to whom it has been assigned, without a jury, even though the plaintiff has by his statement of claim proposed a different venue. The mere fact that the action will be tried more quickly, is not a sufiScient reason for sending it to be tried at the assizes. Cardinall v. Cardinall, 25 Ch. D. 772 ; 53 L. J., Ch. 636 ; 32 W. E. 411 — Pearson, J. In an action for injunction to restrain in- fringement of copyright and for damages : — Held, that the defendant had "no right to a trial by jury, but that, under Ord. XXXVI. roles 4 and 7 (a), the court had a discretion which it exercised by directing a trial without a jury. Semble, that the burden of proof was on the party applying for a jury. Coote v. Ingram, 35 Ch. D. 117 ; 56 L. J., Ch. 634 ; 56 L. T. 300 ; 35 W. R. 390— Chitty, J. In an action brought by the plaintiff in the Chancery Division against the defendants, in respect of an infringement by them of his registered trade-mark, and claiming an account of profits or damages, the defendants submitted to a perpetual injunction ; and the only question remaining to be tried was, what damages should be paid, the plaintiff waiving any accounts of profits. The plaintiff applied to the court that the action might be transferred to the Queen's Bench Division, so that it might be tried with a jury. This application was opposed by the defendants, on the ground that, under rule 4 of Ord. XXXTI. of the Eules of Court, 1883, the judge had a discretion ; and that the damages could be as well ascertained by the judge in court or chambers as by a jury : — Held, that the judge had no discretion, and that under rule 6 of Ord. XXXVI., an order must be made for a trial with a jury. But held, that, even if the court had a discretion, this was not a case in which such discretion ought to be exercised, the only question remaining at issue in the action being in regard to the amount of damages for the infringement of the trade-mark, which question would be more properly tried with than vrithout a jury. Fenrwssy v. RabHts, 56 L. T. 138— Kay, J. The plaintiff in an action to set aside deeds on the ground of fraud, named Cardigan as the place of trial in his statement of claim. On motion by a defendant before issue joined, the court ordered the action to be tried in the Chan- cery Division without a jury, and this decision was affirmed by the Court of Appeal. Powell v. Colb, 29 Ch. D. 486 ; 54 L. J., Ch. 962 ; 53 L.T. 188— C. A. An action to restrain the defendants from obstructing the plaintiff's water rights was set down in the Chancery Division on the 27th May, and briefs were delivered on the 7th July. On motion by the defendants that the trial might take place at Manchester before a judge and jury : — Held, that the defendants had an abso- lute right to trial by jury ; that Manchester was the proper place for the trial ; the costs to be re- served on account of the defendants' delay in bringing their motion. Old Mill Company v. BuUnjield Local Board, 54 L. J., Ch. 160 ; 51 L. T. 414— V.-C. B. The plaintiffs sued in respect of certain altera- tions made by the defendant in his house at Bath, which adjoined the plaintiffs' house. The plaintiffs claimed, first, specific performance of an agreement entered into upon a sale of the land on which the house stood, whereby a certain building scheme was provided ; and, secondly, an injunction to restrain the defendant from so building as to interfere with the light and air coming to the plaintiffs' house. A motion was made on behalf of the defendant for an order that the action might be tried before a judge and jury, and that the trial might take place at the forthcoming assizes at Bristol. The defen- dant's contention was, that the issue as to ob- structing ancient lights not being one of those matters which by the Judicature Act, 1873, was assigned to the Chancery Division, the court had, so far as that part of the action was concerned, no discretion in the matter ; but that the defen- dant had a right to have that issue at all events tried before a judge and jury. Further, that, supposing such a right did not exist, yet, as this issue was quite independent of the question of specific performance, and as moreover the locus in quo was Bath, and therefore great expense would be saved by having the trial at Bristol, the court, in the exercise of its discretion, ought to direct a trial before a jury : — Held, that the action being one which by the Judicature Act was assigned to the Chancery Division, the court had a discretion whether or not it would allow a trial by jury ; and that the defendant had no right to say that he would split the action in two and insist upon one portion of it being tried before a jury. Held, also, that as to the exercise of that discretion, this was not a case in which the issue sought to be tried before a jury was preliminary to the rest of the action, and might put an end to it ; that in whichever way the issue as to the obstruction of light was decided, the question of specific performance would remain, and would have to be tried in the Chancery Division ; and that therefore the ap- plication must be refused. Sheppard v. Gilmoro 53 L. T. 625 ; 34 W. E. 179— Kay, J. Counterclaim for Damages — Plaintiff Applying for whole Action to be Tried with a Jury.] — The plaintiff brought an action for redemption of shares mortgaged by him. The defendant by counterclaim sought relief incident to his position as mortgagee, and also damages for alleged fraudulent misrepresentations made by the plaintiff to the defendant which affected the amount of the balance to secure which the mortgage was given. The plaintiff applied to have the action tried with a jury, which was refused : — Held, on appeal that the case did not come within Ord. XXXVI. r. 6, so as to give the plaintiff a right to have the action tried with a jury ; that his proper course would have been to apply to have the counter- claim for damages tried separately, as a claim which could not be conveniently tried in the 1471 PRACTICE AND PLEADING. 1472 pending aclion, and that the appeal must be dis- missed. Lyncli V. Macdo7ialcl, 37 Ch. D. 227 ; 57 L. J., Ch. 651 ; 58 L. T. 293 ; 36 W. K. 419— C. A. Prolonged Examination of Oocnments — local Prejudice against Defendants.] — Where in an action (the place of trial being Durham) to restrain the Ecclesiastical Commissioners from working mines under the plaintiff's land the plaintiff applied for a trial by jury, the court refused to order such trial upon evidence (1) that the issue was one requiring a prolonged examination of documents under Ord. XXXVI. r. 6, and (2) that the Ecclesiastical Commis- sioners could not get a fair trial on account of the local prejudice existing against them as landlords. Shafto v. Bolcltow, Vauqlian, and Co., 57 L. T. 17 ; 35 \X. R. 686— Chitty, J. Action Assigned to Chancery Division — Joinder of Cause of Action not so Assigned.] — The plaintiff commenced an action in the Chancery Division, alleging that the defendant was trustee of a sum of 1001. for her, and' claim- ing payment of that sum with interest, and, if necessary, an account of profits made by the defendant by using it in his business, and also claiming the return of certain chattels, or their value, and damages for their detention. The defendant denied the trust, stated that the money had been lent to him by the plaintiff, and long ago repaid, and denied that he ever had any chattels of the plaintiff in his possession. The plaintiff, after the defence had been put in, applied to have the issues of fact tried by a jury: — Held, that the action came within Ord. XXXVI. r. 3, and not within r. 6 of the same "order. That the action therefore was to be tried by a judge without a jury, unless it could be made out that it was better to have it tried by jury, and that in the present case this was not shown. Gardner v. ./ay, 29 Ch. D. 50 ; 54 L. J., Ch. 762 ; 52 L. T. 395 ; 33 W. R. 470— C. A. 1. Notice op Trial. Eight of Defendant to give — Abridgment of Time.]— Ord. XXXVI. r. 12 provides that, if the plaintiff does not within six weeks after the close of the pleadings, or within such extended time as the court or a judge may allow, give notice of trial, the defendant may, before notice of trial given by the plaintiff, give notice of trial, or may apply to the court or a judge to dismiss the action for want of prosecution. Ord. LXIV. r. 7, provides that the court or a judge shall have power to enlarge or abridge the time appointed by the rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require : — Held, that the period of six weeks mentioned in Ord. XXXVI. r. 12, is not a time appointed for doing any act or taking any proceeding within Ord. LXIV. r. 7, and consequently that the court could not make an order giving the defendant leave to give notice of trial, if the plaintiff did not give such notice within a shorter period than six weeks from the close of the pleadings. Saunders v. PawUy, 14 Q. B. D. 234 ; 54 L. J., Q. B. 199; 51 L. T. 903 ; 33 W. R. 277— D. Cause not entered — Motion to Dismiss for Want of Prosecution.] — A plaintiff gave notice of trial (in Middlesex) within the six weeks limited by rule 12 of Ord. XXXVI., but did not, as required by rule 16, enter the trial within six days after the notice of trial was given. The trial not having been entered : — Held, that the defendant was entitled to move to dismiss for ■«vant of prosecution, and an order dismissing the action was accordingly made. CricU v. Hewlett, 27 Ch. D. 354 ; 53 L. J., Ch. 1110 ; 51 L. T. 428 ; 32 W. R. 922— Pearson, J. Whether fresh Notice necessary.] — See ToTisley v. Ileffer, ante, col. 1468. Cause Struck Out — Fresh Notice necessary.] — The plaintiff had given notice of trial, and the cause, after standing over for more than a year, had been struck out under Ord. XVII. r. 10, of the Rules of 1883. It was sub- sequently re-entered by the plaintiff in the cause-book on the payment of 21., as required by the scale of fees ; but, as he had given no fresh notice of trial, the defendant now submitted that the re-entry was erroneous, and ought to he struck out : — Held, that, where a cause has been struck out under Ord. XVII. r. 10, the notice of trial is no longer in force, and that consequently another must be given before the plaihtiffi can re-enter the cause for trial. Le Blond v. CurtU, 52 L. T. 574 ; 33 W. R. 561— Chitty, J. Default in Proceeding to trial after Verdict set Aside — Trial by Proviso.] — An action, in which the place of trial was out of Dublin, was tried at the Spring Assizes, 1883, when a verdict was directed for the defendant. This verdict was set aside on the ground of misdirection, and a second trial took place at the Spring Assizes, 1884, resulting in a verdict directed for the plaintiff, which was also set aside, and a third trial ordered in the Michaelmas Sittings, 1884. The plaintiff not having served notice of trial for the next ensuing assizes, the defendant moved to dismiss the action for want of prose- cution, contending that the case fell within Ord. XXXV. rr. 2, 4 :— The Court refused the motion. Semble, the only remedy open to a defendant under such circumstances is trial by proviso under the old practice. Foott v. Senn, 16 L. E., Ir. 247— Ex. D. d. Peoceedistss at Thial. Non-appearance of Plaintiff.] — Where notice- of trial had been served on the defendants, and the plaintiff did not appear, the defendants moved to dismiss the action, with costs as against them : — Held, that it was not necessary for them to produce an affidavit of service of notice of trial, and that they might have their order as a matter of course. Palmer, In re, Skipper v. SMpper, i^ L. T. 553— V.-C. B. Non-appearance of Defendant— Belief claimed by Pleadings.] — Action to enforce specific per- formance by the purchaser of an open contract to purchase leaseholds. Defendant had paid a deposit and accepted the title, but failed to complete. By his pleading the defendant ad- mitted that he was unwilling to complete. At the trial (the defendant not appearing) the plaintiff asked for judgment for rescission and forfeiture of the deposit : — Held, that the plaintiff was entitled to judgment for specific 1473 PEACTICE AND PLEADING. 1474 performance as claimed by his pleadings, but not for rescission and forfeiture. Stone v. Smith, 35 Ch. D. 188 ; 56 L. J., Ch. 871; 56 L. T. 333 ; 35 W. K. 545— Kekewich, J. On Hearing of Motion.] — See Montagv v. Land Corporation of England, post, col. 1509. Non-appearance — Striking-out Cause — Time for Application to Bestore to List.] — An action coming on for trial on the 30th July, was dis- missed with costs in consequence of the plaintifE not appearing at the trial. On the 31st October a motion was made to discharge the previous order, and to restore the case to the paper to be heard on the merits : — Held, that the court had no power to restore the action except when the application is made within six days of the dis- missal. Walter or Walker v. James, 53 L. T. 597 ; 34 W. K. 29— North, J. Where an application to set aside a judgment obtained against a party on his non-appear- ance at the trial is made after the time limited for so doing has expired, it is not necessary to first make a substantive application for an extension of time, but the notice of motion should show that -the application is out of time. Rule 21 of Ord. XXXIII. of the Chancery of Lancaster Rules, 1884, which provides that an application to set aside a judgment obtained where one party does not appear at the trial must be made " within six days after the trial, or at next sitting of the court," does not give an option to the party against whom judgment has been given to move either within the time named (whether a court sits or not), or at the next following sittings ; but means that the application is to be made within six days, if the court is then sitting, and if it does not sit within the six days, the next time it does sit. Bradshaw V. Warlow. 32 Ch. D. 403 ; 55 L. J., Ch. 852 ; 54 L. T. 438 ; 34 W. R. 557— C. A. Hearing in Private.] — ^An appeal from an injunction to restrain the defendant from dis- closing confidential information was ordered to be heard in private without the consent of the defendant, the plaintifE stating that a public hearing would defeat the object of the action, and make success on the appeal useless to him. Mellor V. Thompson, 31 Ch. D. 55 ; 55 L. J., Ch. 942 ; 54 L. T. 219— C. A. Order for Trial of one Question before the other — Liability — Damages.] — Where liability and also the amount of damages are disputed in an action, and the question as to the amount of damages is one of such detail or nature that it probably will be referred to some other tribunal than a jury, it is a proper exercise of discretion under Ord. XXXVl. r. 8, to order the question of liability to be tried, and the question of damages to be postponed until afterwards. Smith V. Hargrove, 16 Q. B. D. 183 ; 34 W. R. 294— D. Withdrawal of Juror — Breach of Terms of Agreement to withdraw — Jurisdiction to re-try Action.] — The withdrawal of a juror upon terms is not necessarily the final determination of an action ; and if there be a substantial breach by one of the parties of the terms upon which the juror was withdrawn, the court before whom the case came for trial has jurisdiction to re-try the action. Thomas v. Exeter Flying Post Company, 18 Q. B. D. 822 ; 56 L. J., Q. B. 313 ; 56 L. T. 361 ; 35 W. R. 594— D. Judgment given contrary to Findings of the Jury.] — Under the Rules of the Supreme Court, 1875, the judge, after leaving a question to the jury, had no power to give judgment contrary to the finding of the jury on a question so left to them ; where, therefore, this course had been adopted the Court of Appeal ordered a new trial. Perkins v. Dangerjield, 51 L. T. 635 — C. A. 15. NEW TRIAL. ITotice of Motion — Misdirection— Grounds.] — A notice of motion for a new trial on the ground of misdirection should state how and in what matter the judge misdirected the jury. Pfeiffer V. Midland Mailway, 18 Q. B. D. 243 ; 35 W. R. 335— D. S. P. Mnrfett v. Smith, 12 P. D. 116 ; 56 L. J., P. 87 ; 57 L. T. 498 ; 35 W. R. 460 ; 51 J. P. 374— D. And Taplin v. Taplin, 13 P. D. 100 ; 57 L. J., P. 79 ; 58 L. T. 925 ; 37 W. R. 256 ; 52 J. P. 406-1). Interpleader — Application to what Court.] — Under the Rules of 1883, Ord. LVII. r. 11, where an interpleader issue has been tried by a jury, and judgment given according to their finding by the presiding judge, application for a new trial must be made to the Court of Appeal and not to the Divisional Court. Burstall v. Bryant, 12 Q. B. D. 103 ; 49 L. T. 712 ; 32 W. R. 495 ; 48 J. P. 119- D. But see next case. Where a party desires to obtain a new trial in an interpleader issue, the application must be made to a divisional court. If in such a case it is desired both to move for a new trial and also to appeal, under Ord. XL. r. 5, both applications must be made in interpleader as in other cases, in the first instance to a divisional court, from the judgment of which an appeal lies to the Court of Appeal. Robinson v. Tueker, 14 Q. B. D. 371 ; 53 L. J., Q. B. 317 ; 50 L. T. 380 ; 32 W. R. 697 — C.A. In County Court.]— /See County Court, 5, a. Action remitted to the County Court for Trial only.]— Rr. 3 and 4 of Ord. XXXIX., and r. 1 of Ord. LII. (of 1883), have no application to cases sent for trial to a county court under 19 & 20 Vict. c. 108, s. 26 ; applications for new trials, therefore, are still regulated by the old practice. Pritchard v. Pritcha/rd, 14 Q. B. D. 55 ; 54 L. J., Q. B. 30 ; 51 L. T. 859 ; 33 W. R. 198— D. Trial at Bar — Application not Ex parte.] — Where an information to recover penalties under the Parliamentary Oaths Act of 1866 has been tried at bar, a motion for a new trial must not be made ex parte, but upon notice of motion to the other side. Att.-Qen. v. Bradlaugh, 14 Q. B. D. 667 ; 54 L. J., Q. B. 205 ; 52 L. T. 589 ; 33 W. R. 673— C. A. Damages excessive — Power of Court to Reduce.] — In a case where the plaintifi is entitled to sub- stantial damages, and a verdict for the plaintifE cannot be impeached, except on the ground that the damages are excessive, the court has power to refuse a new trial, on the plaintiff alone, and 3 B 1475 PRACTICE AND PLEADING. 1476 without the defendant, consenting to the damages being reduced to such an amount as the court would consider not excessive had they been given by the jury. Selt v. Lawes, 12 Q. B. D. 356 ; 53 L. J., Q. B. 219 ; 50 T-. T. 441 ; 82 W. E. 607 — C. A. The defendant published in a newspaper several libels of the plaintiff, who brought an action thereon. The defendant, in his defence, denied that he published the words complained of in the defamatory sense alleged, and as to one of the libels paid a nominal sum into court. The cause of action in respect of which the money was paid in was the same as that set out in other paragraphs of the statement of claim with a different innuendo. The jury found a verdict for 50Z. on the paragraph in respect of which the money was paid in, and 3,000^. in respect of the rest of the statement of claim : — Held, that verdict and judgment should stand for 3,000?., but that a remittitur damnum should be entered as to the 50Z. Saltan v. O'Brien, 16 L. E., Ir. 97— Q. B. D. Affii-med 16 L. E., Ir. 483—0. A. misdirection. ] — It is not misdirection for the judge to tell the jury his own opinion on the issue before them. Sinith v. Dart, 14 Q. B. D. 105 ; 54 L. J., Q. B. 121 ; 52 L. T. 218 ; 33 W. E. 455— D. Verdict against the Weight of Evidence — Principle on which New Trial allowed.] — In granting a new trial on the ground that the verdict was against the weight of evidence, the court must be satisfied not merely that the ver- dict was one which reasonable men ought not to have given, but that it was so unreasonable that a jury could not properly give it, if they really performed the judicial duty cast upon them. Solamon v. Bitton (8 Q. B. D. 176) observed upon. Metrapalitan Railway v. Wright, 11 App. Gas. 152 ; 55 L. J., Q. B. 401 ; 54 L. T. 658 ; 34 W. E. 746— H. L. (E.) A new trial of an action ought not to be granted on the ground that the verdict was against the weight of evidence if the verdict was one which the jury, acting as reasonable men, could have found. Solaman v. Bitton (8 Q. B. D. 176) explained. Webster v. Frledeierg, 17 Q. B. D. 736 ; 55 L. J., Q. B. 493 ; 55 L. T. 49 ; 34 "W. E. 728— C. A. Perverse Verdict — Circumstances suggesting Perversity.] — Although there is no absolute rule invalidating a verdict certified by the judge at the trial to be perverse, yet such certificate affords ground for setting aside the verdict when coupled with other circumstances appearing in the report suggestive of perversity, such as the award of nominal damages when not apparently warranted by the evidence ; though these cir- cumstances would not, per se, and in the absence of such a certificate, be sufficient to disturb the verdict. Quinlane v. Murnane, 18 L. E., Ir. 53 — C. A. Power of Court of Appeal to enter Judg- ment.] — The Court of Appeal has power under Ord. LVIII. r. 4, to enter judgment instead of sending a case down for a new trial where it has come to the conclusion that the verdict is against the weight of evidence, and that all the facts are before the court. Millar v. Toulmin, 17 Q. B. D. 603 ; 55 L. J., Q. B. 445 ; 34 W. E. 695— C. A. See S. C. in H. L., infra. Qusere, whether on appeal from an order of a divisional court upon an application for a new trial on the ground of the verdict being against the weight of evidence, the Court of Appeal has power to give judgment for the appellants instead of directing a new trial. Millar v. Touhmn, (17 Q. B. D. 603) doubted. Tmlmin v. Millar, 12 App. Gas. 746 ; 57 L. J., Q. B. 301 ; 58 L. T. 96 — H. L. (E.) 16. JUDGMENT. a. Peacticb. Under Order XIV.]— -S«e ante, col. 1421. Judgment by Default— Appeal or Application to Be-hear.] — Although the Court of Appeal has jurisdiction to hear a direct appeal from a judgment byi default, such appeals will not be encouraged. The proper course for a, party against whom judgment has been given by de- fault is to apply to the judge who heard the cause to set aside the judgment and to re-hear the cause. Vint v. Sndspith, 29 Ch. D. 322 : 54 L. J., Ch. 844 ; 52 L. T. 741 ; 33 W. B. 738— C. A. Entry of Judgment — Special Directions — Order for Payment hy Instalments— Bemoving Stay of Execution — Amendment.] — ^The plaintiffs having obtained a verdict in an action, under Lord Campbell's Act, for 501. damages, the judge at the trial (without the consent of the plaintiffs, as they alleged), directed judgment to be entered for the plaintiffs, but that the damages and costs should be paid by yearly in- stalments of 20Z., the damages to be paid into the hands of one of the plaintiffs, in trust for herself and her co-plaintiffs (who were infants), and to be paid in priority to the costs. Judgment was entered in accordance with these directions. The defendant failed to pay the first instalment, and was, as the plain- tiffs by affidavit alleged, disposing of all his available property. The court, on the applica- tion of the plaintiffs and on notice to the defen- dant, ordered the judgment to be amended by striking out the qualification, so as to stand for a judgment in the ordinary form for the damages awarded and costs, and directed that the order as to suspending execution should be entered as a separate order of the judge at the trial, and as of the date of the trial ; and, having regard to the circumstances disclosed on the application, gave liberty to the plaintiffs, notwithstanding such order, to issue immediate execution for the full amount of the judgment. Brien v. Sullivan, 14 L. E., Ir. 391— Ex. D. The power to suspend execution should be exercised by a separate order, and not by a qualification of the judgment. Semble, the order for payment by instalments, and post- ponement of costs, was not within the dis- cretionary powers as to staying execution con- ferred by Ord. XLI. r. 15. lb. Non-appearance atTrial.]— &e ante, cols. 1472, 1473. Service of Notice of Judgment on Person not Party to Action.] — See Symons, In re, Betts i. Betts, ante, col. 1400. 1477 PEACTICE AND PLEADING. 1478 Entering Judgment on Application to Court of Appeal for New Trial.] — See Tmlmin v. Millar, supra. Divisional Court — Junior Judge withdraw- ing.] — In a revenue case ou appeal by the Crown to the Divisional Coui't, the judges were divided in opinion ; the junior judge wi&drew his judg- ment in accordance with the old practice in the Court of Exchequer. Colqulwun v. Brooks, 19 Q. B. D. 418 ; 57 L. J., Q. B. 70 ; 57 L. T. 455 ; 36 W. R. 332— D. S. P. Reg. v. Income Tax Commusioners, 20 Q. B. D. 549 ; 57 L. J., Q. B. 337 ; 59 L. T. 455 ; 36 W. E. 671 ; 52 J. P. 695 — D. The withdiawal of the judgment of the junior judge only takes place where there is an appeal, at least I am not prepared to say that if there were no appeal it would be done, because judges are equal in point of authority. Col- guhoun V. Brooks, 21 Q. B. D., p. 56 — Per Lord Bsher, M.K. Where a case, requiring to be heard before a divisional court, is heard by a court consisting of only two judges, and these judges differ in opinion, the proper practice is to have the case re-heard before three or more judges of that division, and the old practice of one of the judges withdrawing his judgment should not be adopted. Where one of two judges withdraws his judgment, the order made is that of a single judge, and not of a divisional court. Greene v. Thornton, 16 L. E., Ir. 381— C. A. Befnsal to execute Instrument in compliance with.] — See post, col. 1491. 6. Motion foe Judgment. Admission on Pleadings — Counter-claim.] — In an action for a liquidated demand the defendants pleaded admitting the claim, but setting up a, counter-claim for unliquidated damages to a greater amount. The court refused an applica- tion under Ord. XL. r. 11, for an order to sign judgment for the plaintiffs upon the claim, and for payment of the amount thereof by the defen- dants into court to abide the result of the action. Mersey Steamship Company v. Shuttleworth, 11 Q. B. D. 531 : 52 L. J., Q. B. 522 ; 48 L. T. €25 ; 32 W. E. 245— C. A. Part of Demand — Bight to Proceed for Besidue.] — In an action upon a fire policy to recover 1,OOOZ., the defendant company pleaded that the policy was subjected to a condition that if at the time of loss or damage by fire there was any other insurance effected by the insured, or any other person, covering the same property, the defendant company should not be liable to pay or contribute more than their rateable pro- portion of such loss ; that at the time of the alleged damage by fire the premises were in- sured against fire by a sub-tenant of the plaintiff, upon which insurance a certain sum was paid to the sub-tenant, who by covenant with the plaintiff was bound to keep the premises in re- pair, and that the apportionment of the loss which the defendant company were bound to pay under the policy was 62^. This sum was not brought into court. The plaintiff having moved under Ord. XXXIX. r. 9, for judgment for this sum without prejudice to his right to proceed for the residue of the amount claimed : — Held, that the rule only applied to cases in which the plaintiff was willing to accept the admitted sum in satisfaction of his claim, and that the motion must, therefore, be refused. Andrews v. Patriotic Assurance Company, 18 L.E., Ir. 115— Ex. D. Enquiry as to Damages — Infringement of Patent.] — ^Where in an action for the infringe- ment of a patent the defendant admits the validity of the patent, and admits ten infringe- ments and no more, the plaintiff inoving for judgment on admissions under Ord. XXXII. i'. 6, is entitled to an injunction and an inquiry as to damages from the admitted infringements, but not to a general inquiry as to damages. United Telephone Company v. Bonohoe, 31 Ch. D. 399 ; 55 L. J., Ch. 480; 54 L. T. 34 ; 34 W. E. 326— C. A. — — Non-deliveryof Beply.]— A defendant is entitled, under Ord. XXXIX. r. 9, to judgment on admissions of facts in the pleadings, by reason of the plaintiff not delivering a reply to the de- fendant's dbfence. Elliott v. Harris, 17 L. E., Ir. 351— M. E. Withdrawal of Defence^Infant Defen- dants.] — The defence of two infant defendants in an ejectment action was withdrawn under an order of court. The other defendants having made admissions, judgment was moved for, supported by an affidavit proving the statement of claim : — Held, that the correct course where infants are parties and their defence is with- drawn and judgment is moved for, is to prove the statement of claim by affidavit. Fitzwater V. Waterhotue (52 L. J., Ch. 83) followed. Gardner v. Tapling, 33 W. E. 473— North, J. Motion or Summons in Chambers.] — ^An action was brought to restrain the defendants from publishing or issuing a certain trade circular. By their defence they offered to submit to a perpetual injunction in the terms of an interlocutory injunction which had already been obtained against them, " to be obtained on sum- mons issued for that purpose." The action was set down on motion for judgment, and the plaintiffs moved for judgment for a perpetual injunction as offered by the defendants ; — Held, that there was jurisdiction to make the order in chambers, that the application should have been so made, and that the plaintiffs should only be allowed such costs as would have been incurred upon a summons in chambers. London Steam Dyeing Company v. Bigiy, 57 L. J., Ch. 505 ; 58 L. T. 724 ; 36 W. E. 497— North, J. Applications for orders upon admissions on pleadings should be made by summons in cham- bers, to come on in court as adjourned sum- monses. Gough V. Heatley, 49 L. T. 772 ; 32 W. E. 385— Pearson, J. In Default of Pleading.] — See infra, B. 7. c. Setting Aside, Vaeying oe Impeaching. Application by Person not Party to Becord.] -If a person, who is not a party to the record, 3 B 2 1479 PEACTICE AND PLEADING. 1480 seeks to set aside a judgment by wMch he is injuriously affected, whicli the defendant in the action has allowed to go by default, he ought by summons, taken out in the name of the defen- dant, or if not entitled to use the defendant's name, then taken out in his own name, but in that case served on both the plaintifE and the defendant, apply for leave to have the judgment set aside, and to be allowed either to defend the action on such terms of indemnifying the defen- dant as the judge may consider right, or to intervene in the action in the manner pointed out by the Judicature Act, 1873, s. 24, sub-s. 5. Ord. XXVII. r. 15, is designed to enable judg- ments by default to be set aside by those who have or who can acquire a locus standi, and does not give a locus standi to those who have none. Jacques v. Harrison, 12 Q. B. D. 165 ; 53 L. J., Q. B. 137 ; 50 L. T. 246 ; 32 W. K. 471— C. A. Frivolous Applications to Impeach — Form of Order.] — Repeated frivolous applications for the purpose of impeaching a judgment having been made by the same parties, the Court of Appeal made an order prohibiting any further applica- tion without leave of the court. Orepe v. Loam, 37 Ch. D. 168 ; 57 L. J., Ch. 435 ; 58 L. T. 100 —0. A. Setting aside — When Irregularly obtained.] — Where a plaintiff has obtained judgment irregularly, the defendant is entitled ex debito justitise to have such judgment set aside ; and the court has only power to impose terms upon him as a condition of giving him his costs. Anlaiy v. Prcetorins, 20 Q. B. D. 764 ; 57 L. J., Q. B. 287 ; 58 L. T. 671 ; 36 W. E. 487— C. A. Consent Order — Powers of Court and Parties by Consent.] — The owners of the B. sued the owners of the C. for a collision. In the course of the trial a compromise was arrived at, whereupon the court made an order by consent dismissing the action, including a counter-claim, without costs. The owners of the cargo on the B. then sued the owners of the C, and obtained a judgment, declaring both ships to blame. The owners of the C. began a suit to limit their liability, and paid the limitation fund into court. Subsequently, the owners of the B., with the consent of the owners of the C, obtained on summons, without application to the court, an order in the registry setting aside the first order, and made a claim upon the fund in court : — Held, that the second order was invalid, and did not operate to set aside the first order, which was a judgment of the court, and therefore that, as the owners of B. had no claim against the owners of the C, the claim was rightly disallowed. Whether in the absence of fraud the court itself could have set aside the first order, quaare. The Bellcairn, 10 P. D. 161 ; 55 L. J., P. 3 ; 53 L. T. 686 ; 34 W. E. 55— C. A. Obtained by Collusion.] — D., the residuary legatee of Mrs. Y., brought an action for admi- nistration of Mrs. Y.'s estate against E.,the sur- viving executor. Mrs. Y. had been the surviving executrix of her husband. V., one of the resi- duary legatees of the husband, shortly after- wards brought her action against E. as sole defendant, for administration of the husband's estate, alleging breaches of trust by Mrs. Y., and asking administration of her estate, if E. as her representative did not admit assets to pay what should be found due from her estate to the husband's estate. On the 28th February V. moved for judgment. There was no evidence before the court that Mrs. Y. was indebted to her husband's estate, or that she had been guilty of wilful neglect or default. E. by his counsel admitted that she was so indebted, and he sub- mitted to a judgment, directing an account of personal estate of the husband, which she had received with an inquiry as to the balances in her hands, and directing administration of her estate. It appeared that from information E. had received, he felt sure that Mrs. Y. would be found a debtor to her husband's estate, and that it would be advisable to submit to the judgment, so as not to incur costs. D. on the 26th of June moved to discharge or vary the judgment of 28th February : — Held, that although E. might have acted injudiciously in submitting in Feb- ruary, 1885, to an order which went further than any order that could have been made adversely on the materials before the court, the order could not be discharged unless the court was satisfied that R. had submitted to it fraudu- lently in collusion with V., and in this case the court was satisfied that E. had acted bonS, fide. Youngs, In re, Doggett v. Revett, VoUiim V. MeveU, 30 Ch. D. 421 ; 53 L. T. 682— C. A. Judgment in Default of Defence.] — ^An order was made on the defendant in an action to produce certain documents for inspection. The defendant wilf ally refused production, and accordingly an order was made under Ord. XXXI. r. 21, to strike out the defence, and judg- ment was given against the defendant in default of pleading. On an application by the defendant, under Ord. XXVII. r. 15, the court refused to set aside the judgment. Haigh v. Haigh, 31 Ch. D. 478 ; 55 L. J., Ch. 190 ; 53 L. T. 868 ? 34 W. E. 120— Peareon, J. Proceedings Instituted without Authority — Time for Application,] — Where a shipowner applied to the court to set aside an order con- demning him in the costs of unsuccessful legal proceedings taken in his behalf by the managing owner, on the ground that the proceedings had been instituted without his knowledge, consent^ or ratification, and that the first intimation he had of the proceedings was a notice received by him about a month previous to the present apph- cation, condemning him in the costs of such, proceedings : — The court refused to grant the application, as it did not appear that the appli- cant, though he had no kn:.wledge of the insti- tution of, was not aware of the pendency of, the proceedings ; and because he had not at once applied to the court on becoming aware of the proceedings, instead of delaying to take any steps for over a mouth. The Bellcairn, 54 L. T. 544 ; 5 Asp. M. C. 582— Butt, J. Correction of Error — ^Accidental Slip.]— The court has jurisdiction to correct an error in a judgment arising from an accidental slip, although the time for appealing from the judg- ment has expired. At the trial the judgment allowed the defendant to set off a sum named for interest paid on account of the plaintiff. The amount was arranged between the parties on the faith of a statement made bonS, fide by the def en- 1481 PRACTICE AND PLEADING. 1482 dant, and accepted by the plaintiff as accurate, that the defendant had made the payments of interest from a certain date. After the judgment had been drawn up and the time for appealing had expired, the plaintiff found that the interest allowed by the judgment had for two years ah'eady been allowed to the defendant in account : — Held, that there was jurisdiction under Ord. XXVIII., r. 11, to correct the error. Jiarher v. Purms, 56 L. T. 131— C. A. Variation of — Facts, known before Trial.] — On the hearing of a partnership action judgment was pronounced declaring the dissolution of the partnership, and directing the usual accounts to be taken, but no direction as to return of the premium paid by the plaintiff was given or asked for by him. The plaintiff subsequently applied to the court that an inquiry should be made or direction given as to return of premium. It did not appear that any further facts had come to the knowledge of the plaintiff other than those which were known to him and put in evidence on the hearing of the action : — Held, that the relief sought was supplemental relief in the nature of equitable damages, and that, in the absence of evidence that new facts had come to the knowledge of the plaintiff, the court, in the exercise of its discretion, ought not to entertain the application. Mdmonds v. Robinson, 29 Ch. D. 170 ; 54 L. J., Ch. 586 ; 52 L. T. 339 ; 33 W. R. 471— Kay, J. Judgment passed and Entered — Jurisdiction to Amend.] — The court has inherent jurisdiction to correct mistakes in the record of its judgments. Where the judgment does not correctly repre- sent what was actually decided by the court, the court has jurisdiction to amend the judgment, although it has been passed and entered. But the proper course is to move to vary the minutes after they have been settled, and before they have been passed and entered ; and, if this course is not followed, the judgment will be afterwards amended only under special cir- cumstances, and on the terms of the applicant paying all the costs. Swire, In re, Mellor v. Swire, 30 Ch. D. 239 ; 53 L. T. 205 ; 33 W. B. 785— C. A. 17. EXECUTION.— /See EXECUTION. 18. ATTACHMENT.— /See Attachment. 19. MOTIONS, SUMMONSES, PETITIONS, AND ORDERS. a. Motions. Specially constituted Court — Public Interest.] — The Divisional Court will decline to specially constitute a court to hear a motion for a rule to show cause, which, it is alleged, involves ques- tions of great constitutional importance and public interest, although it might specially con- stitute a court to hear the rule argued on the question of its being made absolute. Lewis, Ex paHe, 52 J. P. 264— D. Notice of Motion — Notice for a Day not in the Sittings,] — A notice of motion was given for a day not in the sittings of the court : — Held, that the notice was good. Daubney v. Shuttleworth (1 Ex. D. 53), overruled on this point. Conlton, In re, Hamling v. Blliott, 34 Ch. D. 22; 56 L. J., Ch. 312 ; 55 L. T. 464 ; 35 W. B. 49— C. A. Amendment of] — A notice of motion having been given for a day not in the sittings, the court amended the notice in this respect. Williams v. De Soinville, 17 Q. B. D. 180 ; 54 L. T. 732 ; 34 W. E. 702— D. A notice of appeal by motion from the order of a judge in chambers to a divisional court is bad if the day for which it is given falls at a time when no court could by any possibility be sitting. Maullin v. Rogers, 55 L. J., Q. B. 377 ; 55 L. T. 121 ; 34 W. E. 592— D. But see pre- ceding cases. On an application for an interlocutory injunc- tion, the court, on being satisfied that under the circumstances no injustice would be done, gave leave to amend by claiming a receiver. Muh- bucli V. Helms, 56 L. J., Ch. 536 ; 56 L. T. 232 ; 35 W. K. 574— Stirling, J. On motion for judgment in default of defence, a defence has been put in before the hearing, but as it disclosed no real grounds of defence, the court ordered the notice of motion to be amended by making it a motion for judgment on admissions in the defence. Gill v. Woodfin, 25 Ch. D. 707 ; 53 L. J., Ch. 617 ; 50 L. T. 490 ; 32 W. E. 393— C. A. Form of.] — A notice that the court will be moved at the Royal Courts of Justice is sufficient, though the judge be sitting in chambers. Petty v. Daniel, 34 Ch. D. 172 ; 56 L. J., Ch. 192 ; 55 L. T. 745 ; 35 W. E. 151— Kay, J. Affidavit not Served with Notice of Motion.] — A notice of motion to set aside an award, which would expire on the last day of the sittings next after such award, was served without any copy of the affidavit in support of the applica- tion : — Held, that though the court may not have power to enlarge the time for making the application under Ord. LXIV. r. 7, there is power under Ord. LXX. r. 1, to hear the appli- cation, although the time has expired, if the court deem fit. Wiggeston Hospital and Stephen- son, In re, 54 L. J., Q. B. 248 ; 52 L. T. 101 ; 33 W. R. 551 — D. See also Attachment, I. . Summons or Motion.] — The court had granted an injunction restraining the defendants from polluting a stream, but suspended the order for three months. The plaintiff, soon after the expiration of that period, served them with notice of motion under Ord. XLII. r. 31, for leave to issue sequestration. The defendants contended that copies of the affidavits intended to be used had not been served with the notice of motion, and that the application for leave, if necessary, ought to have been by summons in chambers : — Held, that copies of affidavits need only be served with the notice of motion in cases where the liberty of the subject is involved, as in attachment, and that under the circum- stances, the plaintiff was right to move the court in the first instance, instead of proceeding by summons in chambers. Selous v. Oroydon 1483 PRACTICE AND PLEADING. 1484 Mural Sanitary Authority, 03 L. T. 209 — Chitty, J. Further Evidence after Hearing in Chambers.] — After a summons has been heard by the judge personally in ohambeis, and he has given his decision upon it, further evidence, which was not before him in chambers, will not be received upon a motion in court to discharge the order made in chambers. Munns and Longden, In re, 60 L. T. 356— Kay, J. Motion for Injunction — No Statement of Claim.] — Semble, where a motion for an injunc- tion is treated as the hearing of the action, and there is no statement of claim, the plaintiff is precluded from asking relief on any ground not specifically claimed by the writ. Serf v. Acton Local Jioard, 54 L. T. 379 — Pearson, J. Order made subject to Affidavit of Service.] — An order dismissing an action for want of pro- secution was made subject to production of an affidavit of service, no one appearing for the plaintiff. Shortly afterwards counsel appeared for the plaintiff, but the judge refused to have the case argued. No affidavit of service was sworn or filed until after the day on which the motion was made. The registrar drew up the order on production of an office copy of an affidavit of service sworn and filed after that day, omitting in the order the date of the affi- davit. It appeared that since the passing of the Judicature Acts the rule in Lord Milltown v. Stuart (8 Sim. 34) had not been uniformly observed by the registrars : — Held that, assum- ing the drawing up of the order on an affidavit sworn and filed after the day on which the motion was made to be irregular, the irregu- larity was not such that the court ought on that ground to discharge the order. Seaar v. Webb, 25 Ch. D. 84 ; 53 L. J., Ch. 4(U ; 49 L. T. 481 ; 32 W. K. 351— C. A. For Attachment of the Person.] — See Attachment, I. To Dismiss for want of Prosecution.] — See ante, col. 1448. For Judgment in Default of Pleading.] — See post, col. 1506. For Judgment on Admissions in Pleadings.] — See ante, cols. 1477, 1478. b. Summons. 1. Service of. On Foreigner out of the Jurisdiction.] — The plaintiff having obtained judgment against the defendant, a foreigner resident out of the juris- diction, a summons was issued by leave of a judge at chambers calling on the defendant to show cause why a receiver should not be ap- pointed. On an application for leave to serve this summons on the defendant out of the juris- diction : — Held, that there was no jurisdiction to grant such leave. Weldon v. Gounod, 15 Q. B. D. 622— D. Leave will not be given to serve a summons for taxation of costs upon a foreigner out of the jurisdiction. Brandon, Ex parte, Bouron, In, re, 54 L. 1. 128 ; 34 W. K. 352— D. Where the plaintiffs sued for goods in the pos- session of the defendant, and it appeared that a foreigner residing out of the jurisdiction claimed the right to the same goods, and would probably sue the defendant in respect of them, the court gave the defendant leave to serve an inter- pleader summons out of the jurisdiction upon the foreigner. The effect of service out of the jurisdiction in such a case is to give the foreigner notice of the proceedings within the jurisdiction, so that he may appear and prosecute his claim, or, if he does not appear, so that any future claim prosecuted by him against the defendant in respect of the subject-matter of the action within the jurisdiction may be barred. Credits Gen-wndeuu v. Van Weede, 12 Q. B. D. 171 ; 5a L. J., Q. B. 142 ; 32 W. E. 414 ; 48 J. P. 184— D. Of Originating Summons.] — See infra. ii. Origrinatingr Sunuuons. a. Service of. Similar to Service of Writs.] — In an adminis- tration action commenced by originating sum- mons under Ord. LV. rr. 3 and 4, of the Rules of Court, 1883, the defendant being a person of unsound mind not so found by inquisition, the summons was served, as required for writs by Ord. IX. r. 5, of the same rules, on the person under whose care the person of unsound mind was. No appearance was made by the defendant on return of the summons, and none was entered. Notice of motion was served for the appointment of a guardian ad litem, as required by Ord. XIII. r. 1, of the same rules in case of default of ap- pearance to writs. The court, holding that the rules as to the service of writs applied to an originating summons, made an orfer appointing a guardian ad litem. Fepper, In re, Pepper v. Pepper, 53 L. J., Ch. 1054 ; 50 L. T. 580 ; 32 W. E. 765— V.-C. B. Out of the Jurisdiction.] — Where an originat- ing summons was taken out by an executor for the purpose of deciding the question of the domicil of a testator, and the widow and one adult child and two infants were separately represented by counsel ; but one adult child C. B. was in Calcutta and could not be served, and the property was of great value ; the court refused to decide the question in the absence of C. B., but gave leave to issue a writ, arid gave leave to serve the writ out of the jurisdiction, and to serve notice of motion on C. B. in Cal- cutta, in order to have a declaration deciding the question, the evidence on the summons to be used on the motion. Bullen-Smith, In re, Bemers v. BuUen-Smith, 57 L. T. 924 — Kay, J. The court cannot order service of an originat- ing summons out of the jurisdiction. Busfield, In re, Wlialey v. Busfield, 32 Ch. D. 123 ; 55 L. J., Ch. 467 ; 54 L. T. 220 : 34 W. E. 372— C. A. j8. Jurisdiction. Objection to — ^Time for — Costs.]— An objection to the jurisdiction upon an originating summons 1485 PEAOTICE AND PLEADING. 1486 having been taken by the defendants for the first time after the hearing of the summons had been adjourned into court : — Held, that the objection ought to have been taken in chambers, and that, though the objection was good, and the summons must be dismissed with costs, the defendants could not be allowed the costs of the adjourn- ment into court. Davies, In re, Davies v. Davies, infra, Determination of Questions at issue in Action.] — Except to the extent to which special provi- sions are made by the rules, as, for instance, by Ord. XV., the plaintiff in an action is not entitled to take out a summons for the determination of the questions which are at issue in the action, and which will properly be decided at the trial. Bortliwick V. Bansford, 28 Ch. D. 79 ; 54 L. J., Ch. 569 ; 33 W. R. 161— Pearson, J. Question between Legal Devisees.] — Upon an originating summons under r. 3 of Ord. LV. of the Rules of Supreme Court, 1883, there is jurisdic- tion to determine such questions only as before the existence of that rule could have been deter- mined under a judgment for the administration of an estate or execution of a trust. Conse- quently, there is no jurisdiction upon an origina- ting summons to decide a question arising between legal beneficial devisees under a will. Davies, In re, Davies v. Davies, 38 Ch. D. 210 ; 57 L. J., Ch. 759 ; 58 L. T. 312 ; 36 W. R. 587— North, J. Question affecting Person claiming adversely to Will.] — The court has no jurisdiction, on an originating summons under rule 3 of Ord. LV. of the Rules of Court, 1883, to determine a question affecting a person claiming adversely to the will of a deceased person. Bridge, In re, Franhs v. WoHh, 56 L. J., Ch. 779 ; 56 L. T. 726 ; 35 W. R. 663— Kay, J. Construction of Will — Settlement.] — H. de- vised lands to T. in terms which raised a ques- tion whether the lands passed to T. in fee or for life only, with remainder to A. as tenant in tail under a prior settlement, the legal estate in the lands passing direct to the devisee or devisees, and there being no trustees of the will. H. died in 1863. T. died in 1884, having devised his real estate to trustees. A. executed a disentail- ing deed and a re-settlement of his estate. The trustees of T.'s will took out an originating summons under Ord. LV. r. 3, making A. and the trustees of his re-settlement defendants, for the determination of the questions whether /the lands devised by the wUl of H. passed to T. in fee, and thence to the trustees of his will, or whether they belonged to T. for life only with remainder to A. in tail, and if so, were included in A.'s re-settlement : — Held, that Ord. LV.r. 3, did not apply to the case, and that the court had no jurisdiction to determine the questions upon an originating summons. Carlyon, In re, Car- lyon V. Carlyon, 56 L. J., Ch. 219 ; 56 L. T. 151 : 35 W. E. 155— North, J. Appointment of Receiver.] — Semble, that a receiver may be appointed upon an originating summons. Gee v. Bell, 35 Ch. D. 160 ; 56 L. J., Ch. 718 ; 56 L. T. 305 ; 35 W. E. 805— North, J. In- an administration action, commenced by originating summons, a receiver may (in a proper case) be appointed immediately after the service of the summons and before any order for ad- ministration has been made. Franolie, In re, Drahe v. Franohe, 57 L. J., Ch. 437 ; 58 L. T. 305— North, J. A mortgagee issued a writ asking for the usual order for foreclosure, and moved for the appoint- ment of a receiver, and on the motion being heard, a receiver was appointed. A statement of claim was delivered, but the mortgagor having become bankrupt, the plaintiff withdrew his claim for payment : — Held, that the plaintiff should have proceeded by originating summons. Barr v. Harding, 58 L. T. 74 ; 36 W. R. 216— Kay, J. To set aside Release.] — Two legatees having alleged that they had been induced to execute a release, indemnifying the executors of a testa- tor's estate, without having had independent advice : — Held, that they were entitled to take out an originating summons under Ord. LV. r. 3, of the Rules of Court, 1883, to have the release set aside, the question of the vaHdity of the release being one " arising in the administration of the estate " and " affecting " the rights of the legatees within the meaning of that order. Gar- nett, In re, Gandy v. Macaulay, 50 L. T. 172 ; 32 W. R. 474— V.-C. B. The court, in its discretion, will not allow a claim which involves setting aside a release to be determined on an originating summons, but will require a writ to be issued. Mlis' Ti-usU, In re. Kelson v. Ellis, 59 L. T. 924 ; 37 W. R. 91— Kay, J. Direction to Trustees.] — An originating sum- mons ought not to be taken out under Ord. LV. r. 3, for the purpose of obtaining a direction to trustees to do or abstain from doing an act which is outside the scope of their trusts. Suffolk v. Lawrence, 32 W. R. 899 — Pearson, J. Payment of Moneys into Court — ^Wilful Default of Trustees.] — An originating summons was taken out under Ord. LV. of the Rules of Court, 1883, by one of the residuary legatees under the will of a testator, against the executors and trustees thereof, asking that certain questions or matters arising in the administration of the estate of the testator might be determined and relief given in respect thereof. The summons asked that a sum of stock standing in the names of the trustees might be transferred into court ; that a mortgage deed for securing the payment of a sum forming part of the testator's estate might be deposited in court ; that the trustees might be ordered to pay into court a sum form- ing part of the estate and improperly used by them in their respective businesses ; for proper accounts ; a declaration of the rights and inte- rests of the persons beneficially entitled ; that so far as might be necessary for the purposes aforesaid the estate might be administered by the court ; and that the trustees might be ordered to pay the costs. It was objected that the case ought to have been commenced by a writ in an action, inasmuch as trustees could not properly be charged with wilful default by an originating summons : — Held, that the court had jurisdiction, upon an originating summons, to order payment into court of moneys which have been received 1487 PEACTICE AND PLEADING. 1488 by trustees and improperly applied by them ; and therefore to grant the relief asked for in the present case. Chapman, In re, Fardell v. Cliap- man, 54 L. T. 13— Kay, J. Question whether Defendant Co-trnstee with Plaintiff.] — The plaintiff claimed, by action, that it might be determined whether the defendant was co-trustee with him of a settlement under which both of them had been appointed trustees, and that a new trustee might be appointed in the defendant's place. The defendant denied that he had ever accepted the trusts or acted as trustee, or that he had refused to concur in the appointment of a trustee in his place ; and it was objected that the (application ought to have been by originating summons: — Held, that relief could not have been granted under an originating summons, and that the plaintiff had rightly proceeded by action and was entitled to his costs thereof. Mworthy v. Harvey, 60 L. T. 30 ; 37 W. B. 164— Kekewich, J. Appointment of New Trustees.] — Upon an originating summons asking for general admin- istration of an estate and the appointment of new trustees, the court can make an order for the appointment of new trustees, all the parties interested in the appointment being before the court. Allen, In re, Simes v. Simes, 56 L. J., Ch. 779 ; 56 L. T. 611— Stirling, J. The court has no jurisdiction, upon an origi- nating summons in chambers, to make an order appointing new trustees, and vesting in them the trust estate. Gill, In re, Smith v. Gill, 53 L. T. 628; 3i W. E. 134— Kay, J., and see Mworthy v. Harvey, supra. Approval of Sale by Court.]— Under r. 3 (/) of Ord. LV. the court can only approve of a sale which the executors or trustees of the will or deed to which the originating summons relates could have made themselves. Mubinson, Jn re, J'ichard v. Wheater, infra. e. Petitions. Service out of Jurisdiction — Payment out of Court.] — Where some of the persons entitled to certain funds in court were residing out of the jurisdiction, and it was impossible to deal with such funds unless a petition, which had been presented asking for payment out of a portion ' thereof, was served upon such persons, the court gave liberty to serve the petition, together with a copy of the order, upon them. Coils'^. Moiins, 55 L. T. 479— Kay, J. The court has no jurisdiction to allow service out of the jurisdiction of a petition under the Trustee Relief Act for payment of money out of court. Gordoti/s Settlement Trusts, In re (W. N. 1887, p. 192), not followed. On appeal from this decision, it appearing that the order sought by the petition was only for carrying into full effect an order which had recently been obtained by the respondents, the Court of Appeal, without deciding that leave was necessary, gave leave to serve the petition on the solicitors who had presented the former petition, and who were willing to accept service. Jellard, In re, 39 Oh. D. 424 ; 60 L. T. 83— North, J., and 0. A. Petition or Summons for Payment out of Court.] — See ante, col. 1430, and Lands Clauses ACT, III. 3. d. Oeders. Enforcing Undertaking. ] — At the trial of an action for specific performance of an agreement to make a road, the defendant gave an under- taking that he would complete the road in ques- tion. An order was subsequently made, fixing a date by which the road was to be completed. This not having been done, the plaintiff moved, under Order XLII. r. 30, for an order that he might be at liberty to complete the road himself at the cost of the defeodant : — Held, that the case did not fall within the rule, but neverthe- less, the court would enforce the undertaking by permitting the plaintiff to do the works, with liberty to apply that the defendant should pay the expenses so incurred in completing the road. Mortimer v. Wilson, 33 W. B. 927— North, J. Jurisdiction to make Declaratory Order.] — Under Ord. XXV., r. 5, the court has now juris- diction to make a declaratory order, though no consequential relief is claimed ; but such juris- diction will be exercised with great caution. Austen v. Collins, 54 L. T. 903— Chitty, J. Sale of Beal Estate — " Cause or Matter relat- ing to Eeal Estate " — Ord. LI., r. 1.] — An action was brought by the infant heir-at-law (by a next friend) of an intestate against the widow, who was the administratrix, cla,iming accounts of the personal estate, and of the rents and profits of the real estate received by the defen- dant. The action came on for hearing on motion for judgment, and the court was asked under Ord. LI., r. 1, to make an order for the sale of the real estate. The defendant did not object : — Held, that this was not " a cause or matter relating to real estate " within the meaning of the rule, and that the court could not order a sale under that rule. But, upon a summons under the Settled Land Act, a sale was ordered. Staines, In re, Staines v. Staines, 33 Ch. D. 172 ; 55 L. J., Ch. 913 ; 35 W. E. 75— North, J. Under r. 1 of Ord. LI. the court has power to order a sale of real estate only when it is neces- sary or expedient for the purposes of the action before it that the property should be sold. No new power to ordeu a sale is conferred. Robinson, In re, Pichard v. Wlieater, 31 Ch. D. 247 ; 55 L. J., Ch. 307 ; 53 L. T. 865— Pearson, J. Where property consisted of agricultural land in Norfolk which was much depreciated in value, the court refused to order the estate to be sold under Bules of Court, 1883, Ord. LL r. 1, for the purpose of paying the costs of a petition action, in which a declaration of the rights of the parties entitled had been obtained, and a receiver ap- pointed against their father, who had previously been in possession and refused to account, but directed the receiver to apply any funds in his hands after keeping down incumbrances in pay- ment of costs. Miles v. Jarms, 50 L. T. 48— Kay, J. Misrepresentation and Concealment of Facts by Purchaser.]— The proposition laid down by the Court of Appeal, that " a person desirous of buying property which is being sold under the direction of the court must either abstain from 1489 PEACTICE AND PLEADING. 1490 laying any information before the court in order to obtain its approval, or must lay before it all the information he possesses, and which it is material that the court should have to enable it to form a judgment on the subject under its consideration," is too broadly stated. It does not follow that because information on some material point or points is offered, or is given on request, by a purchaser from the court, it must therefore be given on all others as to which it is neither offered nor requested, and concerning which there is no implied representation, positive or negative, direct or indirect, in what is actually stated. Caaks v. Boswell, 11 App. Gas. 232 ; 55 L. J., Oh. 761 ; 55 L. T. 32— H. L. (E.). Keversing S3 W. R. 376— C. A. leave to Bid — Solicitor.] — Leave to bid at a sale by the court, granted to a solicitor on the record, relieves him from his fiduciary cha- racter, and places him in the same position as an ordinary purchaser. lb. By ConBent — Form.] — Where an order has been agreed to and arranged between the parties to an action, and has not been sanctioned or directed by the court, it should appear on the face of the order that it is an order by consent. Michel v. Miitch, 55 L. J., Ch. 485 ; hi L. T. 45 ; 34 W. E. 251— Chitty, J. Facts not mentioned to Court — With- drawal of Consent.] — An action was brought against a local board to restrain them from pull- ing down certain houses of the plaintiff's, and for damages. On a motion for an injunction coming on, the defendants' counsel, by the authority of his clients, consented to an order for a perpetual injunction, with costs, and an inquiry as to damages, and such order was taken by consent without opening the case to the court. Before the order had been passed, the defendants for- mally withdrew their consent, and the registrar thereupon declined to pass the order without the direction of the court. The plaintiff moved that he might be directed to proceed to perfect the order. The defendants alleged that their in- structions to consent had been given under a misapprehension, but did not enter into any evidence in support of that allegation : — Held, that where counsel by the authority of their clients consent to an order, the clients cannot arbitrarily withdraw such consent, and that the registrar must be directed to proceed to per- fect the order, without prejudice to any applica- tion which the defendants might make to the court below to be relieved from their consent, on the ground of mistake or surprise, or for other sufficient reason. Harvey v. Croydon Union Rural Sanitary Authority, 26 Ch. D. 249 ; 53 L. J.,,Ch. 707 ; 50 L. T. 291 ; 32 W. B. 389— C. A. Withdrawal of Consent — Mistake or Surprise.] — An action was brought for an in- junction to restrain the defendant from sell- ing certain buttons alleged to be an infringe- ment of the plaintiffs' registered trade-mark. The defendant, believing that he had no defence to the action, consented to an order for a per- petual injunction with costs. Before the order was drawn up, he received a letter from the manufacturer of the buttons, which were made in Cfermany, wherefrom It appeared that the buttons had been sold in this country long before the registration of the plaintiffs' trade- mark. On motion by the defendant that he might be relieved from the consent so given : — Held, that a party who has deliberately con- sented to a perpetual injunction cannot be permitted to withdraw his consent merely be- cause he has subsequently discovered that he might have a good defence to the action ; that the case was not one of mistake ; and that the motion must be refused. Msas v. Williams, 54 L. J., Ch. 336 ; 52 L. T. 39— Kay, J. Eeotification — Costs.] — On the 31st Jan. the defendants in an action obtained an ex parte injunction against the plaintiffs until the 4th Feb. On the 4th Feb. a motion was made to commit the plaintiffs. The order on the motion to commit as drawn up by the registrar recited the ex parte injunction and the affidavits in support of it, but contained no order as to costs, except that the plaintiffs were to pay the costs of the motion, and the taxing-master dis- allowed the costs of the ex parte motion accord- ingly : — Held, that the court had power under Ord. XXYIII., r. 11, to correct the order made on the 4th Feb. by adding thereto a direction for taxation and payment by the plaintiffs of the defendants' costs of the ex parte order of the 31st Jan. Blahey v. Hall, 56 L. J., Ch. 568 ; 56 L. T. 400 ; 35 W. E. 592— Chitty, J. Mistake — Misrepresentation.] — Where a wrong order has been made by reason of mis- representation or mistake of fact, the error may be corrected by a new order made notwithstand- ing the former order. Staniar v. 3oans, 34 Ch. D. 470 ; 56 L. J., Ch. 581 ; 56 L. T. 87 ; 35 W. E. 286— North, J. Amendment of Error after Order passed and entered.] — The plaintiffs in a foreclosure action applied by summons under Ord. XV. r. 1, for an account. The chief clerk pronounced the usual order for an account and foreclosure. The defendants objected to the direction for fore- closure, and the plaintiffs assenting, the order was drawn up for an account only, and was passed and entered in that form. When the parties came before the chief clerk to proceed with the account, he objected to the order as not being the one he had pronounced, and re- fused to proceed with the account. Subsequently the registrar at the instance of the chief clerk, without any motion or summons, altered the order by adding the usual directions for fore- closure. The defendants moved to strike out the additions. Kay, J., declined to do so, as he considered that the parties were not at liberty to have an order drawn up, different from the order pronounced, without applying to the court for the purpose ; but, being of opinion that the addition had been irregularly made, he stayed proceedings under the existing order, giving the plaintiffs liberty to apply for a fresh order for accounts and foreclosure. The defendants appealed: — Held, that assuming the order as passed and entered to contain an error arising from an accidental slip or omission, an altera- tion made in it without any motion or summons for the purpose was irregular, and must be dis- charged, and that the plaintiffs must pay the costs, as they ought to have applied to the judge when the chief clerk refused to proceed with 1491 PRACTICE AND PLEADING. 1492 the accounts. Blalie v. Harvey, 29 Ch. D. 827 ; 53 L. T. 541 ; 33 W. B. 602— C. A. Scotch Court — Enrolment in Chancery Divi- sion.]— On a petition of course the registrar made an order directing enrolment in the Chancery Division of a decree of the Court of Session in Edinburgh, sequestrating the estate of the company, appointing a judicial factor, and ordering delivery of the books of the com- pany : — Held, that there was no authority either by statute or custom for making such an order, and that the enrolment must be vacated. Dundee Suiurian Railway, In re, 58 L. J., Ch. 5 ; 59 L. T. 720 ; 87 W. R. 50— Kay, J. To execute Beeds.] — An order may be made on a party to an action to execute a conveyance of lands directed to be sold in such action, although the conveyance has not been settled at chambers. Dougherty v. Tea::, 21 L. K., [r. 379 — V. C. Non-Compliance — Who appointed.] — The Probate Division has jurisdiction under s. 14 of the Judicature Act, 1884, in the event of any person neglecting or refusing to obey its order to execute a deed, to direct its execution by any other per- son whom it may nominate for the purpose. Howarth v. Howarth, 11 P. D. 95 ; 55 L. J., P. 49 ; 55 L. T. 303 ; 34 W. E. 633— C. A. Affirm- ing 50 J. P. 376— Hannen, P. Where a defendant refused to obey an order, directing her to execute a mortgage, the judge appointed his chief clerk to execute it under s. 14 of the Judicature Act, 1884. Edwards, In re, Owen v. Edwards, 33 W. K. 578 — Pearson, J. Compromise of Divorce Action — Power to make Agreement an Order of Qneeu's Bench Division.] — An action for judicial separation in the Divorce Division was compromised by the parties, and an agreement of compromise signed by them which provided that a separation deed should be executed ; that the agreement might be made a rule of the High Court, and that the respondent should pay the petitioner's taxed costs. A separation deed was afterwards exe- cuted, but the respondent refused to pay the taxed costs, and the agreement was made an order of the Queen's Bench Division for the purpose of enforcing payment : — Held, that there was power to make the agreement an order of court in the Queen's Bench Division, and that as the agreement of compromise had been re- duced to an agreement to pay costs, the discre- tion of the court to make the order had been rightly exercised. Smyths v. SmytAe, 18 Q. B. D. 544 ; 56 L. J., Q. B. 217 ; 56 L. T. 197 ; 35 W. E. 346— D. Execution — Service of Order and Certificate.] — A. obtained a common order for taxation of the costs of his former solicitor B., the order directing payment by A. to B. of the amount of the taxed costs within twenty-one days after the service of the order and of the certificate of taxation. The order and certificate were served, not on A. per- sonally, but on the solicitor then acting for him in the taxation. A. failed to pay the amount within twenty-one days after service of the order and certificate on the solicitor, and B. applied for the issue of a writ of fi. fa. against A. for the amount, but the officer of the court refused to issue the writ, on the ground that A. had not been personally served with the order and certifi- cate : — Held, that B. might have the writ at his own risk, without service of the order and certifi- cate on A. personally. Solicitor, In re, 33 W. E. 131 — Pearson, J. 20. PROCEEDINGS IN CHAMBERS. a. Judge at Chambbes. Jurisdiction of Jndge — Frohihition.] — ^A judge sitting at chambers has jurisdiction to set aside a writ of prohibition issued out of the Petty Bag Office. Salm Kyrhirg v. PotnansH (13 Q. B. D. 218) followed. Amstell v. Lesser, 16 Q. B. D. 187 ; 55 L. J., Q. B. 114 ; 53 L. T. 759 ; 34 W. R. 230— D. Attachment.] — A judge at chambers has power to give leave to issue a writ of attach- ment. Salm Kyrlmrg v. Posnanshi, 13 Q. B. D. 218 ; 53 L. J., Q. B. 428 ; 32 W. E. 752— D. Motion to Discharge Order — Counsel — Appeal.] — When an order has been made by a judge in chambers, the court has no power to alter that order unless upon motion, under s. 50 of the Judicature Act, 1873, to discharge the order. Where all parties concerned have been represented by counsel in chambers, the practice is for the chief clerk to give a certificate, and upon that the parties may go direct to the Court of Appeal. Attorney- General v. Llewellyn, 58 L. T. 367— Kay, J. Fees on entering Appeal.] — See infra, 21. Appeal from Jndge in Chambers.] — See Appeal, JV. I. Master at Chambers. Seference to Master to Eeport.] — See Aebi- TBATION, III. Jurisdiction of Master to stay Execution pend- ing Appeal.] — A master has jurisdiction under Ord. LVIII. r. 16, to stay execution on a judg- ment pending an appeal to the Court of Appeal. Oppert V. Beaumimt, 18 Q. B. D. 435 ; 56 L. J., Q. B. 216 ; 85 W. R. 266— C. A. c:. Chiee Cleek. Jurisdiction — Summons for General Adminis- tration.] — The proviso in Ord. LV. r. 15, that no judgment or order for general administration shall be made under r. 4 of that order by the chief clerk, extends to orders for general admin- istration of trusts constituted by deed. David- son V. Young, 54 L. J., Ch. 747 — Ghitty, J. Int[uiry as to Debts — Fnrchase of Debts by Plain tiir's Solicitor.] — The solicitor to the plaintifE in a creditor's action bought up debts ; the estate was insolvent : — Held, that the ques- tion whether the solicitor was trustee for the creditors of any profit on the purchase could not be raised by the certificate of the chief clerk, in the absence of any direction on the subject in 1493 PRACTICE AND PLEADING. 1494 the order under whicli the certificate was made. Tillet, In re. Field v. Lydall, 32 Ch. D. 639 ; 55 L. J., Ch. 841 ; 54 L. T. 604 ; 35 "W. R. 6— North, J. Varying Certificate of— Summons.]— On an application upon the further consideration of an action for an extension of the time, under rule 71 of Ord. LV. for applying to vary a finding in a chief clerk's certificate :— Held, that the appli- cant should take out a summons for the purpose. Dove, In re, Mansfield y. Dove, 27 Ch. D. 687 ; 53 L. J., Ch. 1099 ; 33 W. K. 197— Pearson, J. Honey found Sue — Motion for Payment — Time.] — The chief clerk, by his certificate, found that a certain sum was due from the defendants as occupation rent. Before the certificate had become binding on the defendants the plaintiffs moved for leave for the receiver in the action to distrain for the rent, or that the defendants should give some security : — Held, that the motion must stand over until the certificate had become binding. Craven v. Ingliam., 58 L. T. 486— Stirling, J. Appeal to Judge.] — See Appeal, V. 21. COUET FEES. " Entering Cause or Uatter for Trial or Hearing" — ^Eule to Justices.] — Under the order as to Supreme Court Fees, 1884, Schedule 52 — which directs that a fee of 11. shall be paid on entering or setting down, or re-entering or re- setting down an appeal to the Court of Appeal, or a cause or matter for trial or hearing in any court in London or Middlesex, or at any assizes — such fee is payable though the matter for hearing does not arise in an action, as in the case of a inle nisi against a justice under 11 & 12 Vict, c. 44, s. 5. Hasker, Ex parte, 14 Q. B. D. 82 ; 54 L. J., M. C. 94— D. Appeals from Chambers.] — Schedule 52 of the order as to Supreme Court Fees, 1884, which provides for the payment of a fee of 2Z. on entering or setting down a cause or matter for trial or hearing, does not apply to appeals from chambers. Sasker, Ex parte, supra, dis- tinguished. Dudley, Ex parte, Solicitor, In re, 33 W. E. 750—1). Percentage — Managers' Accounts.] — In the case of accounts rendered periodically in cham- bers by managers of a business, a percentage will be payable, under item 72 of the schedule to the order as to Court Fees, 1884, upon the amounts found to have been received, and not on the amounts found to be due, notwithstanding the use of the words " the amount found to be due " in the note (d) relating to item 72. If an account has been merely lodged, and no further steps are taken with regard to it, no fee will be payable. Crawshay, In re, Dennis v. Oi'aicsJiay, 89 Ch. D. 552 ; 57 L. J., Ch. 923 ; 59 L. T. 598 ; 37 W. E. 25— North, J. Sale of Property with Approbation of Judge.] — By item No. 69 in the schedule to the order as to Supreme Court Fees, 1884, it is pro- vided that : — " On the sale or mortgage of any land or hereditaments pursuant to any order directing a sale or mortgage with the approba- tion of the judge, made in any cause or matter for the purpose of raising money to be dealt with by the court in such cause or matter, for every 1002., or fraction of 1001. of the amount raised — 2s." It is also provided in the same schedule that : "The amounts for or in respect of which the following fees are payable shall be limited to 200,0002. in the following cases : (a} The amount raised at any time or times in the same cause or matter in the cases to which the fee No. 69 is applicable." Upon a sale by the court of lands and hereditaments belonging to a company in liquidation the purchase moneys of all the lands exceeded 200,0002., and were paid upon a sale made under several orders of court. The question arose between the solicitors of the company and the Treasury whether the limit of 200,0002. applied where there were several orders of such a nature as would make the sale fall within item No. 69, or whether it only applied where there was one order : — Held, that the limit of 200,0002. applied to cases where the limit had been reached irrespectively of the number of orders xmder which the sale was effected. Oriental Banli Corjioration, In re, 56 L. T. 731— Chitty, J. 22. VACATIONS. Ex parte Order of Vacation Judge — Applica- tion to Discharge.] — An order was made by the vacation judge, on the ex parte application of the plaintiffs, for service of the writ and notice of motion on the solicitors and at the place of business in England of a foreigner residing out of the jurisdiction. Without formally entering an appearance the defendant filed affidavits in opposition to the motion, and instructed counsel, who opposed the motion on the merits : — Held, that the defendant had thereby waived the right to raise any objection as to the irregularity of the order, and must be treated as i£ he had been properly served and had formally appeared ; that the fact that the ex parte order had been passed and entered did not prevent the right of the defendant to move to discharge it ; but that r. 12 of Ord. LXIII. did not apply to such a case, and that the proper mode of proceeding (if there had been no such waiver as aforesaid) would have been to apply, not to the Court of Appeal or the vacation judge, but to the judge to whose court the action was assigned, to dis- charge the order of the vacation judge. Doyle V. SacJier, 39 Ch. D. 249 ; 58 L. J., Ch. 141 ; 58 L. T. 822 ; 37 W. E. 68— C. A. Appeal to Divisional Court — Time for.] — ^An order was made by the vacation judge in cham- bers on 11th Sept. and on 1st Oct. the plaintiff gave notice of appeal for the 24th Oct. : — Held, that Order LIV. rule 24, and Order Lll. rule 5, applied, and that the plaintiff should have given notice of appeal within five days from the de- cision appealed against, and that therefore the notice of appeal was out of time. Steedman v. ffaJiin, 59 L. T. 607— D. Affirmed 22 Q. B. D. 16 ; 58 L. J., Q. B. 57 ; 37 W. E. 208 -C. A. 1495 PEACTICE AND PLEADING. 1496 23. DISTEICT EEGISTRY. Proceedings in,]— &fi District Registry. 24. SPECIAL CASE. Power of Railway Commissioners to state.] — See Railway. Power of Justices to state.] — & THE Peace, 6, a. Justice op Appeal to Court of Appeal.] — See Appeal, II. ■2, 0. Trustees acting under — Protection.] — By the combined efEect of E. S. C, Ord. XXXIV., r. 8, and the saving clause in the Statute Law Re- vision Act, 1883, the protection given to trustees and others acting on the declaration of the court on a special case is preserved, notwithstanding the repeal of the Act. Forster v. Schlesinger, 54 L. T. 51— Pearson, J. Costs of.]— iSec Costs, II. 5. 25. STOP-ORDER. Petition or Summons — Fund in Court exceed- ing £1,000.] — Where a fund in court, paid in under the Trustee Relief Act, 1847, exceeds lOOOZ., and there has been no prior application in the matter of the fund, a petition and not a summons lis the proper mode of applying, under rr. 12 and 13 of Ord. XLVL of the Rules of Court, 1883, for a stop-order on the fund bo paid in. Toogood's Trusts, In re, 56 L. T. 703— Chitty, J. Fund partly in Court and partly in Hands of Trustees- — Notice.] — When an assignment is made of an interest in a trust fund, part of which is in court and part in the hands of the trustees, the assignee, in order to complete his title, must, S.S regards the fund in court, obtain a stop-order, and as regards the fund in the hands of trustees, give notice to the trustees. Mutual Life Assur- ance Society v. Langley, 32 Ch. D. 460 ; 54 L. T. 526— C. A. Affirming 32 W. R. 792— Pearson, J. Fund in Court — Notice of Prior Incumbrance to Second Incumbrancer.] — A second incum- brancer of a fund in court, who at the time of taking his security had notice of the existence of the first incumbrance, cannot, by obtaining a stop-order, gain priority over the first incum- brancer, even although the latter never obtains a stop-order. Holmes, In re, 29 Ch. D. 786 ; 55 L. J., Ch. 33— C. A. An incumbrancer who obtains a stop-order on a fund in court does not lose his priority over a previous incumbrancer who has obtained no stop- order, by the fact that he had notice of the previous incumbrance at the time of obtaining the stop-order, if he had no notice of it when he took his security. Elder v, Maclean (5 W. R. 447) observed upon. Mutual lAfe Assurance Society v. Langley, 32 Ch. D. 460 ; 54 L. T. 326 — C. A. Order charging Cash standing to Credit in Chancery Division.] — A charging order upon cash standing to the credit of the debtor in the Chancery Division in the name of the Paymaster- General, may be made ex parte, and in order to give efEect to it it is not necessary to obtain a stop-order ; but notice given to the Paymaster- General will be sufficient to secure priority. Brereton v. Edwards, 21 Q. B. D. 488 ; 60 L. T. 5 ; 37 W. R. 47— C. A. Affirming on other grounds, 52 J. P. 647— D. 26. TIME— NOTICE TO PROCEED. In what Cases Applicable.] — Where a defen- dant had failed to appear to a writ indorsed for a liquidated demand and no proceeding had been taken for more than a year after service of the writ : — Held, that the case came within Ord. LXI V. r. 13, and the plain tifE could not enter final judgment under Ord. XIII. r. 3, but was bound to give defendant a month's notice of his in- tention to proceed. Welster v. Myer, 14 Q. B. D. 231 ; 54 L. J., Q. B. 101 ; 51 L. T. 560 ; 33 W. R. 407— C. A. Power to abridge Time.]— Ord. XXXVL r. 12 provides that, if the plaintiff does not within six weeks after the close of the pleadings, or within such extended time as the court or a judge may allow, give notice of trial, the defendant may, before notice of trial given by the plaintiff, give notice of trial, or may apply to the court or a judge to dismiss the action for want of prosecu- tion. Ord. LXIV. r. 7 provides that the covurt or a judge shall have power to enlarge or abridge the time appointed by the rules, or fixed by any order enlarging time, for doing any act or taking any proceedings, upon such terms (if any) as the " justice of the case may require : — Held, that the period of six weeks mentioned in Ord. XXXTI. r. 12, is not a time -appointed for doing any act or taking any proceeding within Ord. LXIY. r, 7, and consequently that the court could not make an order giving the defendant leave to give notice of trial, if the plaintiff did not give such notice within a. shorter period than six weeks from the close of the pleadings. Saunders v. Pawley, 14 Q. B. D. 284 ; 54 L. J., Q. B. 199 ; 51 L. T. 903 ; 33 W. R. 277— D. 27. INTERPLEADER — &e Interplbadee. 28. AFFIDAVIT— )See Evidence. 29. EVIDENCE— &« Evidence. 80. COSTS— &e Costs. 31. PROCEEDINGS IN PAETICDLAE ACTIONS. a. Actions fob Eecoveet of Land- Ejectment. Pleadings in.] — See Pleadings, infra. Joinder of Causes of Action.] — See ante, ool. 1423. 1497 PEACTICE AND PLEADING. 149& By lunatic.]— /See Lunatic, IV. Siscoveiy — Privilege.] — See Discovbhy, I. 4. Judgment under Ord. XIV.]— (Sac ante, col. 1421. Belief against Forfeiture.] — See Landlord AND Tenant, VL 2. Lease by Administratrix — Action by Adminis- trator de bonis non,] — An administratrix made a lease, in 1854, of premises forming portion of the intestate's assets, for a term of twenty-one years. The lease did not purport to be made by her in her representative capacity. The lessee ad- mittedly went into possession under the lease, but never paid any rent. He continued in pos- session until 1883, when the administrator de bonis non of the intestate brought an ejectment for non-payment of rent. The jury having found that the defendant had continued in possession on the terms of the lease : — Held, that the plain- tiff (the administrator de bonis non) was entitled to a verdict for possession and arrears of rent. Boyle V. Maguire, 14 L. E., Ir. 24— C. P. D. Jurisdiction of County Court — Landlord and Tenant.] — See Fi-iend v. Shaw, ante, col. 547. Writ of Possession when Plaintiff's Title has expired.] — Where a landlord has recovered judgment in an action against his tenant for the possession of premises which had been held over after the expiration of the tenancy, he will be allowed to issue the virrit of possession notwith- standing that his estate in the premises termi- nated after the commencement of the action and before the trial, unless it be unjust and futile to issue such writ, and it is for the defen- dant to show affirmatively that this will be the result of issuing such writ. KnigM v. Clarhe, 15 Q. B. D. 294 ; 54 L. J., Q. B. 509 ; 50 J. P. 84 — C. A. S. Administration Actions— &« Executor AND Administrator. (,'. Partition Actions — See Partition. d. Partnership Actions — See Partnership. (B.) Pleadings. 1. GENEEALLY. "Material Facts"— What are.]— With refer- ence to L.'s claim in respect of lights, B, alleged that in another action (a new trial of which was still pending) L. had sworn that the lights in question were not ancient, and was therefore estopped from alleging in the present action that they were ancient : — Held, that the words "material facts" in Ord. XIX. r. 4, do not mean merely facts which must be proved in order to establish the existence of the cause of action, but include also any facts which the party pleading is entitled to prove at the trial, but that the above allegation did not come within this definition, and was calculated to prejudice the fair trial of the action. Lit/nib v.. Beaumont, 49 L. T. 772 — Pearson, J. Rules 4 and 15 of Ord. XIX. apply to such facts as are material to the cause of action or defence, and not to damages. Wood v. Durham (Earl), 21 Q. B. D. 501 ; 57 L. J., Q. B. 547 ; 59- L. T. 142 ; 37 W. E. 222— D. Judgment on Admissions.] — See ante, col.^ 1477. 2. STATEMENT OF CLAIM. Form in Schedule — Insufficiency.] — A state- ment of claim in a salvage action was drawn in the Form, No. 6, of Appendix C. to the Eules of the Supreme Court, 1883 ; on motion by the defendants under Ord. XIX. r. 7, for a further' and better statement of claim or particulars : — Held, that the plaintiffs must deliver a fuller statement of claim, and that in salvage actions, a fuller form than that given in Appendix C, No. 6, should generally be followed. The Isis,. 8 P. D. 227 ; 53 L. J., P. 14 ; 49 L. T. 444 ; 32 W. R. 171 ; 5 Asp. M. C. 155- Hannen, P. Bight of Way —Alleging Plaintiffs' Title gene- rally.] — In an action for interfering with the plaintiffs' right of way to a certain quarry, the plaintiffs alleged, in the first paragraph of their statement of claim, that they were entitled to a right of way from the public highway through a certain gateway along a certain passage to the, said quarry, and back again from the said quarry to the public highway, for themselves, their agents, servants and licensees, on foot and with horses, carts and carriages, at all times of the- year ; and in the second paragraph they alleged that they were entitled to a right of way from the public highway through a certain gateway along a certain passage to the said quarry, and back again from the said quarry to the public- highway, for themselves, their agents, servants and licensees, on foot and with horses and carts,, at all times convenient and necessary for the working of the said quarry, and for removing stones, gravel and other material therefrom. On motion to setasiiie the first and second paragraphs of the statement of claim : — Held, that the state- ment of claim v. as sufficient. Kenmare (_Zordy , 12 L. R., Ir. 374— Q. B. D. Action on Covenants in a Lease — Title toi Beversion.] — In an action upon covenants in' an expired lease, the plaintiff stated the lease ;. that the term had expired ; that at its expira- tion the defendants were the assigns of the lease, and liable to perform the lessee's cove- nants ; that the plaintiff became, and at the expiration of the term was entitled to the. immediate reversion in the demised property, subject only to the term ; that he was and is entitled to enforce all the lessee's covenants, and that the defendants had for eight years paid him rent : —Held, such pleading was insufficient, that the plaintiff ought also to have shown what the reversion was which the lessor had, and how the plaintiff derived his title to that particular reversion, and that the statement of claim must be struck out under Ord. XIX. r. 27, as a plead- ing tending toembarrassthefairtrialofthe action . Philipps V. Philipps (4 Q. B. D. 127) followed.. 1499 PEACTICE AND PLEADING. 1500 Davis V. James, 26 Ch. D. 778 ; 53 L. J., Ch. 523 ; 50 L. T. 115 ; 32 W. K. 406— Kay, J. Ejectment — Allegation of Plaintiffs Deriva- tive Title.] — In an action to recover possession of land for non-payment of rent by a plaintifE claiming under a derivative title, the statement of claim set out a lease, and alleged that the defendant entered into possession under it, and then stated that, on the death of the lessor, all his estate and interest came to and was now- vested in the plaintifE. The defendant having moved to set aside the statement of claim as embarrassing : — Held, that the statement of the devolution of the plaintiff's title was sufSicient. ' Y.Zeac}/, 16 L. E., Ir. 132— G. A. Notice in lieu of.] — In an action for money alleged to have been obtained from the plaintiffs by fraudulent misrepresentation, the nature of which misrepresentation, and the particulars of the sums sued for being set out in the indorse- ment of the writ of summons, the plaintiff delivered a notice in lieu of statement of claim under Ord. XX. r. 2 : — Held sufficient, and motion by the defendant to compel a statement of claim to be delivered, refused. Yoiing v. Bcattie, 16 L. E., Ir. 192— C. P. D. 3. DEFENCE. What is — ^Signing Judgment in Default.] — The plaintiff issued a wi-it for the recoveiy of possession of certain premises against the defen- dant on 2nd February, and on the 1 3th of that month the defendant delivered at the ofBce of the plaintiff's solicitor, a document dated and signed by the defendant, setting out the terms under which he alleged that he held the pre- mises. The plaintiff's solicitor signed judg- ment on the ground that no defence had been delivered. On a summons to set aside the judg- ment as irregular : — Held, that the document so delivered was not a defence and that the judg- ment must stand. Marshall v. Jones, 52 J. P. 423— D. Time for Delivery— Specially indorsed Writ.] — The service of a writ specially indorsed under Ord. III. r. 6, is delivery of a statement of claim to the defendant within the meaning of Ord. XXI. r. 6 ; so that the defendant has ten days from the time limited for appearance within which to deliver his defence. Anlaby v. Prte- toriiis, 20 Q. B. D. 764 ; 57 L. J., Q. B. 287 ; 58 L. T. 671 ; 36 W. B. 487— C. A. Recovery of Possession of Land.] — In an action to recover possession of land a defendant may deliver his defence at any time before judgment entered against him, notwithstanding that the time limited by Ord. XXI. r. 1 (Ir.) has elapsed. Harding v. Lyons, 14 L. E., Ir. 302 — Ex. D. But see cases, post, col. 1508. Default in Delivery - cases, post, col. 1508. -Setting Aside , ] — See Payment into Court with Defence. ] — See ante, col. 1426. Plea to Damages.] — The plaintiff, a profes- sional jockey, sought to recover damages for a libel which stated that he was in the habit of pulling horses belonging to a certain stable. The defendant pleaded a justification, but sought leave to amend his defence by stating that the plaintiff was commonly reputed to have been in the habit of so unfairly and dishonestly riding horses (generally and not of a particular stable) as to prevent their winning races : — Held, that the amendment could not be allowed, since it was a plea to damages only. Wood v. Durham {EarV), 21 Q. B. D. 501 ; 57 L. J., Q. B. 547 ; 59 L. T. 142 ; 37 W. E. 222— D. 4. SET-OFF AND COUNTEKCLAIM. Effect of Judicature Act and Bules.] — Eule 3 of Ord. XIX., Eules of Court, 1875, was not intended to give rights against third parties which did not exist before ; but it is a rule of procedure designed to prevent the necessity of bringing a cross action in all cases where the counter-claim may conveniently be tried in the original action. Milan Tramways Gonvpany, 1% re, Tlieys, Mx paHe, 22 Ch. D. 122 ; 52 L. J., Ch. 29 ; 48 L. T. 213 ; 31 W. E. 107— Kay, J. Affirmed 25 Ch. D. 587 ; 53 L. J., Ch. 1008 ; 50 L. T. 545 ; 32 W. E. 601— C. A. What allowed — Pleading tending to Em- barrass.] — In an action to recover possession of land for non-payment of rent, and for a year's rent, amounting to 346Z. 2s. 6d., due the 29th September, 1883, the defendant, inter alia, pleaded, as to 211., part of the rent claimed, eviction by the plaintiff from a portion of the lands, in 1877, the value of which the defendant alleged was 211. ; as to lOZ. 18s. lOd., other part of the rent claimed, a set-off for poor-rate, to which the plaintiff, as landlord, was liable, and he brought the residue of the rent claimed into court. The defendant also delivered a counter- claim, as to so much of the plaintiff's claim as claimed payment of the said sum of 346Z. 2s. 6d., for 8il. for the plaintiff's use and occupation of the seven acres for four years ; and, secondly, for lOOZ. damages for breach of an alleged contract by the plaintiff, in consideration of the surrender of the said seven acres, to grant a reasonable abatement of the rent of the residue of the lands during the defendant's unexpired term. The poor-rate was paid afteraction brought. On motion by the plaintiff to strike out so much of the defence as relied on the set-off and pay- ment into court as embarrassing, on the grounds that the payment relied on by way of set-off was made after the commencement of the action, and the payment into court was in'egu- lar and not in compliance with the statute and Ord. XXX. r. 5, and that the counter-claim could not be conveniently tried in the action, the coui't granted the motion, and set aside these portions of the defence and counter-claim. Dourhe v. mcJwl, 12 L. E., Ir. 415— C. P. D. Defendant against Principal — Action by Agent.] — In an action of trover and for goods sold and delivered a defendant cannot set off a claim for unliquidated damages, which he has against a third party on another transaction, although the third party happens to be the plaintiff's principal. Tagart v. Marevs, 36 W. E. 469— D. 1501 PRACTICE AND PLEADING. 1502 Breach of Trust— Bill of Exchange.]— An action was brought by a tenant for life and other cestuis que trust against the trustees of a settlement for breaches of trust. One of the trustees alleged as a defence that the breaches of trust had been sanctioned by the tenant for life ; and also set up a counter-claim upon a bill of exchange for i5l., claiming payment of that amount, and that the income of the tenant for life, arising from the property subject to the settlement, might be applied towards payment of the 4:5^., and any other sums which the trustee might be ordered to pay : — Held, that the counter-claim must be struck out under Ord. XXI. r. 15. Fendall v. O'Connell, 52 L. T. 538 — V.-C. B. Action to Becover Possession of Land — Arrears of Annuity.] — In an action by the assignee of the lessor to recover possession of demised land for non-payment of rent, the de- fendant, the assignee holders, paid into court the sum of 302. in satisfaction of the whole cause of action. The holders gave notice (in Form 4, App. B. of the E. S. C. 1883) that they accepted that sum, having previously written to the acceptor to say that the iudorsers had arranged to pay the balance of 702., and would sue the acceptor therefor : — Held that the ac- ceptor was not thereby absolutely released, and that the indorsers, having paid the balance, could recover it from the acceptor. Jones v. WJUtaJier, 57 L. T. 216— C. A. Giving Time — Taking Bill for portion of Debt]. — The defendants were sureties to the plaintiff's for H. D., on a continuing guarantee for the value of goods to be supplied by the plaintiffs to H. D.. not exceeding 3002. in all. The plaintiffs, with- out the defendants' knowledge or coneent, having taken from H. D. a bill at three months still current for 452., on account of portion of the sum due for goods supplied to H. D., the actual amount due having been previously ascertained : — Held, that the defendants were not released from liability to pay the balance of the sum due for the goods supplied to H. D., under the guarantee, but were only discharged to the extent of the 452. for which the bill was taken. Dowden v. Levis, 14 L. E., Ir. 307— Ex. D. See also Qrahams v. Orahwrne, ante, col. 1528. Extension of Time for lodging Instalment by order made upon Consent — Judicial Act.] — S., as principal, and the defendant, as his surety, were jointly and severally indebted to the plaintiffs in the sum of 1,0962. upon three pro- missory notes., S, carried an arrangement in the Court of Bankruptcy with his creditors for 20». in the pound, payable by four equal instalments in four, eight, twelve, and sixteen months respectively, the last instalment to be secured by S. lodging the amount thereof with the official assignee on or before a certain date. S. made default to the extent of 7152. in lodging the amount of the fourth instalment, and the plain- tiffs, to whom 4,8502. was then due, including the amount of the said promissory notes, consented that the moneys in court should be appropriated to paying in full the last instalment to the other creditors before paying them, and that S. should have further time to lodge the 7152. An order was made by the Court of Bankruptcy, grounded on the plaintiffs' consent, so appropriating the moneys in court, and extending the time, for lodging the 7152. S. never lodged or paid this sum. In an action by the plaintiffs against the defendant on the promissory notes, the defendant contended that by this consent of the plaintiffs he was discharged. The plaintiffs having waived their claim to one-fourth of the amount secured by the promissory notes, judgment was entered for them for the remaining three-fourths : — Held, that the extension of time for the lodg- ment by S. of the last instalment, although made upon the plaintiffs' consent, was a judicial act and did not discharge the defendant from liability for at least the three-fourths,, for which judgment was entered. Semble, even as to the one-fourth waived by the plaintiflfe, the proceed- ings in question would not have operated as a discharge to the defendant. Promicial Bank V. Cussen, 18 L. E., Ir. 382— C. A. Bond — Acquiescence in or Connivance at Irregular Payments.] — ^Where G. was the col- lector of three separate rates, which were to be paid over as received once a week to the cor- poration employing him, it is no answer to the surety of a bond given to secure the due pay- ment thereof, that payments were, with the obligee's acquiescence, made at irregular inter- vals, and that G. mixed the proceeds of the various rates together. Durham QMayor) v. Fowler, 52 J. P. 631— Charles, J. Affirmed 22 Q. B. D. 394 ; 58 L. J., Q. B. 246 ; 60 L. T. 456 ; 53 J. P. 374— D. G. was appointed collector of certain rates under the Public Health Act, 1875 (38 & 39 Vict, c. 55), and the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), by the plaintiff corpora- tion, to secure the due and faithful payment of which the defendants entered into a bond on G.'s behalf with the plaintiffs. G. subsequently ap- 1583 PEINCIPAL AND SUEETY. 1534 propriated certain moneys so collected by him to Ms own use. It appeared that, with the ac- quiescence of the corporation, G. did not make regular payment to the corporation of the moneys so collected, and did not keep the proceeds of the rates of which he had charge separate, in accord- ance with the conditions of the several bonds and the provisions of the statutes relating thereto. In an action by the corporation against the sureties : — Held, that such acquiescence was not sufficient to discharge the sureties of their bonds. Semble, the siu-eties would have been liable even if the rate had been invalid. JJ. Omission to fill up Name in Bill — Notice of Non-payment.] — The debtor gave his creditor a bUl of exchange accepted by himself, but with the drawer's name left blank. The plaintiff at the same time, as a surety, deposited with the creditor certificates of stock in a joint stock com- pany as collateral security for the debt. The debtor died without the creditor having filled in the name of the drawer, and his estate was insolvent. The bill was never presented for payment, nor was notice given to the plaintiff of its non-payment : — Held, that the creditor had not discharged the plaintiff from his surety- ship by his omission to fill up the drawer's name, and to give notice of the non-payment of the bill to the plaintiff. Cai-ter v. White, 25 Ch. D, 666 ; 54 L. J., Ch. 138 ; SO L. T. 670 ; 32 W. K. 692—0. A. Substitution of Security for Personal Lia- bility.] — A surety guaranteed payment of the premiums upon a life policy, which had been assigned by the principal debtor to his creditor to secure payment of part of the debt. Sub- sequently, the creditor, without the knowledge of the surety, agreed with the debtor to take the security, with the liability of the debtor and surety to pay the premiums thereon, in substitu- tion for the personal liability of the debtor, in respect of that portion of the debt, and released the debtor from personal liability in respect thereof : — Held, that this arrangement discharged the surety. Lawes v. MauglMti, 1 C. & B. 340 — Denman, J. Mortgage granted by Principal— Sale.] — The appellants having become sureties on the faith of a mortgage granted by the principal debtor to his creditor, claimed to be released whoUy or pro tanto from liability, on the ground that the creditor had without notice to them sold parts of the mortgaged property in a manner unwarranted by the terms of the mortgage deed, and that in- asmuch as the purchaser had failed to pay the price, they had been deprived of the benefit of a security upon which they were entitled to rely for protection : — Held, that on the evidence the sale was effected by the mortgagor, although with the previous consent of the mortgagee, in the due course of his management and in a manner con- templated by the mortgage deed, and that the liability of the sureties was not affected thereby. Taylor v. Sanh of New South Wales, 11 App. Gas. 596 ; 57 L. J., P. C. 47 ; 55 L. T. 444— P. C. Variatioii of Liability.]— The defendants, Evans, Digby, and Simson, executed a joint and several bond for 150Z., in order to comply with an order of a judge at chambers, under Ord. XIV., directing the defendant Evans, in an action of Tatwm V. JSiiamt, to find security as a condition for leave to defend, the condition of the bond being that it should be void if Evans should pay to the plaintiffs the sum of 751., or such sum (not exceeding that amount) as the court should think fit to award. When the case came on for trial, Evans consented to judgment being directed for 750Z., to include costs, payable, as to the first 400Z., by instalments of 251. per month ; the remainder to be paid by instal- ments of 50Z. per month, the first instalment to be payable on the 1st March, 1885, the plain- tiff to be at liberty to issue execution for any balance of the 7501. upon default in payment of any instalments, the defendant to re-convey all Ms interest in the premises to the plaintiff forth- with. It was also provided that the first pay- ment by the defendant was to be taken in dis- charge of the sureties pro tanto, but they were not to be fully discharged until payment of 751. It was found as a fact that the defendant Digby consented to the terms of the judgment, but the defendant Simson did not consent : — Held, that the defendant Simson was discharged from liability under the bond. Tatum v. Hvans, 54 L. T. 336— Denman, J. 3. Eights op Suebtt. Crown Debt — Priority.] — A surety to the Crown, who has paid the debt of his deceased principal, is entitled to the Crown's priority in the administration of his principal's estate. Churchill (^Zord), In re, Manisty v. Churchill, 39 Ch. D. 174 ; 58 L. J., Ch. 136 ; 59 L. T. 597 ; 86 W. E. 805— North, J. Specific Performance of Indemnity, before Breach.] — In equity a contract to indemnify can be specifically enforced before there has been any such breach of the contract as would sustain an action at law. In equity the plaintiff need not pay and perhaps ruin himself before seeking relief. He is entitled to be relieved from liability, Johmton v. Salvage Association, 19 Q. B. D. 460 ; 57 L. T. 219 ; 36 "W. E. 56 ; 6 Asp. M. C. 167— Per Lindley, L. J. Surety for one Partner against another Part- ner.] — The rights of a surety against his principal are not exactly the same as those of the creditor ; and therefore, although a, creditor who has re- covered judgment against one partner cannot sue another partner, that rule does not take away the rights of a surety for one partner as against another partner. Kendall v. Hamil- ton (4 App. Cas. 504), distinguished. Badeley v. Consolidated Banh, 34 Ch. D. 536 ; 55 L. T. 635 ; 35 W. E. 136— Stirling, J. Eight to Securities — Eefusal to give — Damages.] — The plaintiff was the drawer of a bill of exchange for 106Z. as surety for M., the acceptor. The bill was dishonoured at maturity, and the defendant sued the plaintiff and M. on the bill. Against M. he obtained judgment by default, and against the plaintiff on the trial of the action. The plaintiff paid the amount. The plaintiff applied to the defendant for an assignment of the judgment against M. The defendant refused to assign, and the plaintiff 1535 PEISONS. 1536 brought an action : —Held, that the plaintiff was primS, facie entitled to recover as damages the value of specific assests which would have been available for execution under the judgment, if assigned, and that it was not incumbent on him in the first instance to show that there were no other assets available. Oddy v. HalUtt, 1 C. & E. 532 — Denman, J. Co-Sureties inter se — Concealment.]— M. and W. became co-sureties for a sum of 500Z., borrowed by B. Of this sum of 500?., 1252. was, by previous agreement, advanced by B. to his surety W. No notice of this transaction was given to M. B. became bankrupt, and M. and "W. were called upon to pay the unpaid balance of the loan of 500Z. M. brought an action against W., claiming that W. should be treated as principal debtor on account of the advance of 125Z. given to him, and claiming the benefit of all securities given to him : — Held, that there was no concealment between the co-sureties of any material fact, and that the plaintiff was not entitled to the relief claimed. Machreth v. Walmsley, 51 L. T. 19 ; 32 W. E. 819— Kay, J. Security obtained by one co-Surety who las paid off Debt.] — C. being indebted to D., four of his friends joined him in signing and giving four promissory notes to secure the pay- ment to D. of the sum of 13,0O0Z. and interest. D. effected three policies on the life of C. for, in the aggregate, 10,000Z. In 1867, Lord H., of B., one of the co-sureties, having been sued by D. on the notes, paid, with the assistance of his father, the Earl of E., the 13,000/. and interest by a mortgage of estates which were settled upon the Earl for life with the remainder to Lord H. of E. ; and the Earl having paid the premiums and kept the policies on foot, in September, 1871, shortly after the death of C, obtained an assignment from D. of the policies and received the 10,000?. from the insurance office. A., another of the four sureties died. His estate, which was stated to be insolvent, was being administered by the coart, and Lord H. of E. brought in a claim against it for contribution in respect of the sum paid to D. on the notes : — Held, that, under all the circumstances of the case. Lord H. of E. and his father, the Earl, must be treated as one person, and that the claim for contribution would be allowed, but only after Lord H. of E. had brought into account, as a set-off, the moneys which were received on the three policies as- signed to the Earl, credit being first given for the premiums, and other moneys which had been paid in reference to the transaction. Aroedeclme, In re, Atldns v. ArcedecTine, 24 Ch. D. 709 ; 53 L. J., Ch. 102 ; 48 L. T. 725— Pearson, J. Satisfaction of Judgment.]— The right of a co-surety under 19 & 20 Vict. c. 97, who has satisfied a judgment obtained by the ■creditor against the debtor and his sureties, to stand in the place of the judgment creditor, is not affected by the circumstances that such surety has not obtained an actual assignment of the judgment. M'Myii, In re, Lightiown v. M'Myn, 33 Ch. D. 575 ; 55 L. J., Ch. 845 ; 55 L. T. 834 ; 35 W. E. 179— Chitty, J. PRISONS. Inquests in — Jurisdiction.] — See Cobones. Treatment in Prison — " Criminal Prisoner — Meaning of.] — A person committed to prison under 6 & 7 Vict. c. 73, s. 32, and 23 & 24 Vict, e. 127, s. 26, for acting as a solicitor, though not duly qualified, is a " criminal prisoner " within 28 & 29 Vict. 0. 126, s. 4, which enacts that " criminal prisoner shall mean any prisoner charged with or convicted of a crime." Such a person is not entitled to be treated as a mis- demeanant of the first class by 40 & 41 Vict, c. 21, s. 41. Osborne v. Milman, 18 Q. B. D. 471 ; 56 L. J., Q. B. 263 ; 56 L. T. 808 ; 35 W. E. 397 ; 51 J. P. 437— C. A. Reversing 16 Cox C. C. 138 — Denman, J. A person who is committed to prison in default of distress for non-payment of a sum of money adjudged to be paid by a court of summary jurisdiction on an information under s. 31 of the Vaccination Act, 1867, is a "criminal prisoner" within the meaning of the Prisons Act, 1865, s. 5, and must be treated as such while in prison. Kennard v. Simmons, 50 L. T. 28 ; 48 J. P. 561 ; 15 Cox, C. C. 397— Lindley, L. J. Hard Labour — Non-payment of Penalties.] — The 5th section of the Summary Jurisdiction Act, 1879, authorises the infliction of imprison- ment with hard labour for default in payment of a penalty adjudged to be paid by a summary conviction where the act on which the conviction is founded authorises the infliction of imprison- ment with hard labour as a punishment for the offence. Reg. v. Tynemouth JJ., 16 Q. B. D. 647 ; 55 L. J., M. C. 181 ; 54 L. T. 386 ; 50 J. P. 454 ; 16 Cox, C. C. 74— D. Whether a statute which authorises the punishment of an offence with a penalty, or in the discretion of the court, with imprisonment with or without hard labour, is an act which authorises the punishment of imprisonment with hard labour within the meaning of the exceptions in s. 5 of the Summary Jurisdiction Act, 1879, quaere. Reg. v. Tynemouth JJ, (16 Q. B. D. 647), not followed. Reg. v. Tumlvll, 16 Cox, C. C. 110— D. Governor of Prison — ^Action against, for False Imprisonment — Protection of Warrant.] — The govemer of a prison is protected in obeying a warrant of commitment valid on the face of it, and an action for false imprisonment will not lie against him for the detention of a prisoner in pursuance of the terms of such warrant. The plaintiff having been convicted by a court of summary jurisdiction and sentenced to seven days' imprisonment, a warrant of commitment was issued directing that the plaintiff should be imprisoned in a certain goal for seven days. The plaintiff was arrested on August 24, and lodged in prison on August 25. The governor of the gaol kept the plaintiff in prison until and during August 31 : — Held, that, whether or not the plaintiff's sentence ran from August 24 or August 25, the governor was protected by the warrant, and was not liable to an action for false im- prisonment in respect of the plaintiff's detention on August 31. Henderson v. Preston, 21 Q. B. 1537 PEOHIBITION. 1538 D. 362 ; 57 L. J., Q. B. 607 ; 36 W. E. 834 ; 52 J. P. 820— C. A. Affirming 59 L. T. 334— D. Superannuation of Officers — Compensation — Liability of County to pay.] — At the time of the passing of the Prisons Act, 1877, C. was the governor of a prison, which, pursuant to that statute, was transferred to the Secretary of State for the Home Department. The justices of M. had been the local authority having control of the prison. C. retired from his appointment soon aiter the coming into force of that act, and the Commissioners of the Treasury awarded to C. an annuity of 5S21. 13s. id., and appor- tioned it as follows : — 429Z. 6s. Sd. to be borne by the justices of M., and 133i. 6s. 8d. to be borne by grants provided by parliament. At the time of his retirement C. was less than sixty years of age, and he had not become incapable from sickness, age, or infirmity, or injury, of executing his office in person, and he retired for the purpose of facilitating improvements in the management of the prison. The justices having declined to pay the sum of 429Z. 6s. 8d. : — Held, that the commissioners had jurisdiction to appor- tion the annuity granted to C. in the manner above mentioned, and that a mandamus would lie to compel the justices of M. to pay the amount apportioned upon them. Middlesex Justices v. Beg., 9 App. Cas. 757 ; 53 L. J., Q. B. 505 ; 51 L. T. 513 ; 38 W. K. 49 ; 48 J. P. 104 ; 15 Cox, C. C. 542— H. L. (E.). PRIVILEGE. Of members of Parliament.] — See Parlia- ment. Of Witnesses.]— &e Evidence, VII. 3. Of Solicitors,] — See Solicitor. In Actions for Defamation.] — See Defama- tion, I. 2. PRIVILEGED COMMUNI- CATIONS. Non-actionable.] — See Defamation. Kon-prodnction, &c., of.] — See Discovery. I. 4 and II. 5. PRIVY COUNCIL. Practice and Decisions ot]—See cases sub tit. Colony. PROBATE. Of Wills.]— /Ss« Will. Duty.]— ySfce Revenue, III. 6. PROHIBITION. Severable Claims — Part Good.] — Where a plaint contains two claims, one of which is within and the other without the jurisdiction of the county court, a prohibition may be granted as to one only. Reg. v. Westmoreland Connty Court Judge, 58 L. T. 417 ; 36 W. R. 477— D. Acquiescence — Effect of.] — Except on the application of the Crown, the court will refuse to grant a writ of prohibition where the defect in jurisdiction depends upon some fact in the knowledge of the applicant, which he has neg- lected without excuse to bring forward in the court below, since the writ, though of right, is not of course. Broad v. Perkins, 21 Q. B. D. 533 ; 57 L. J., Q. B. 638 ; 60 L. T. 8 ; 37 W. R. 44 ; 53 J. P. 39— C. A. When it may be applied for — Before Execu- tion completed.] — Where in an action in an in- ferior court, upon the facts disclosed at the trial and relied on by the plaintiff, a clear want of j uris- diction over the cause is for the first time made apparent, the defendant has a right, at any time before execution has been completed, to claim a prohibition to restrain all further proceedings, and to prohibit any further excess of jurisdic- tion. Prohibition wiU not go to an inferior court, if such court had in fact jurisdiction over the cause, although the facts in evidence at the trial in the inferior court were not such as to give that court jurisdiction. Heyworth v. London {Mayor'), 1 C. & E. 312 — Hawkins, J. Affirmed in C. A. After Judgment — Salford Hundred Court — Waiver.] — A defendant in an action in the Sal- ford Hundred Court who has not objected to the jurisdiction of that court in his defence, as pro- vided by s. 7 of the Salford Hundred Court of Record Act, 1868, cannot after judgment has been recovered against him in that court obtain a writ of prohibition on the ground of want of jurisdiction. Oram, v. Breary (2 Ex. D. 346), overruled. ChadwioTt v. Ball, 14 Q. B. D. 855 ; 54 L. J., Q. B. 396 ; 52 L. T. 949— C. A. To County Court — Insufficient Notice of New Trial — Jurisdiction to hear Case.] — ^A notice was given by the defendant to the plaintiffs by letter on the 8th Nov. stating that he would apply on the 12th Nov. for a new trial. The plaintiffs refused to accept this notice as being too short, and did not attend at the hearing on the 12th. The fact that the plaintiffs objected to the notice was brought before the judge, who, however, made an order for a new trial. The plaintiffs applied for a prohibition to restrain the judge from hearing the case on the new trial : — Held, that a prohibition ought not to be granted, as the proper proceeding for the plaintiffs to have adopted would have been to have made an appli- cation to the judge to set aside the order for a new trial as irregular. Jones' Trustees v. Git- tens, 51 L. T. 599— D. Setting aside — Jurisdiction of Judge at Chambers.] — A writ of prohibition, directed to the judge of a county court, had been issued out of the Petty Bag Office, as of course, upon 3 D 1539 QUO WAERANTO. 1540 a formal aflSdavit that the cause of action did not arise within the jurisdiction : — Held, that a, judge at chambers had jurisdiction to set aside the writ. Amstell v. Lesser, 16 Q. B. D. 187; 55 L. J., Q. B. 114 ; 53 L. T. 759 ; 34 W. E. 230— D. To local Government Board.] — Semble, the local government board in exercising its func- tions as to provisional orders is not a " court," nor are purely legislative powers, or powers of promoting legislation on principle, subject to prohibition ; but a usurpation of jurisdiction of a judicial character by the board might be pro- hibited. Kingstown Commissioners, Ex parte, 18 L. E., Ir. 509— C. A. PROMISSORY NOTE. See BILLS OF EXCHANGE. PROMOTER. See COMPANY, II 1. PROOF OP DEBTS. In Bankruptcy.] — See Bankkxtptcy. In Winding up.]— &e Company. In Administration.] — See EXECtTTOK AND Administeator. PROSPECTUS. See COMPANY, I. 1. PROTECTOR OP SETTLE- MENT. See SETTLEMENT. PROXY. See COMPANY, IX. PUBLIC COMPANY. See COMPANY. PUBLIC HEALTH. See HEALTH. PUBLIC HOUSE. See INTOXICATING LIQUOES. PUBLIC OFFICER. See OFFICE. PUBLIC WORSHIP. See ECCLESIASTICAL LAW. QUARTER SESSIONS. See JUSTICE OF THE PEACE. QUEENSLAND. See COLONY. QUO WARRANTO. In what Cases — Office held at Pleasure.]— A quo warranto will not be granted to inquire into the right of an office which is held merely at the pleasure of a public official. Reg. v. Carroll, 22 L. E., Ir. 400— Q. B. D. Bate Collector.]- The office of collector of rates of a borough is not an office for which an information in the nature of a quo warranto will lie. Meg. v. Whelan, 20 L. E., Ir. 461— Q. B. D. 1541 EAILWAYS. 1542 RAILWAYS. 1. Powers and Duties in Constnicthig and Working, 1541. 2. Mines and Minerals, 1546. 3. Boiling Stock, 1548. 4. Judgment against, 1548. 5. Offences against, 1550. 6. ArMtration between Jtailways, 1551. 7. Railway Commissioners, 1552. 8. As Carriers of Passengers and Goods — See Caeeieb. 9. Compulsory Purcliase of Land, ^c. — See Lands Clauses Act. 10. Liability for Negligence — See Negligence. 11. Rating— See Coepokation— PooE LAW. 12. Liability under Contagious Diseases {Animals') Act — See Animals. 13. Parliamentary Deposit — A bandonment — See Pabliambnt. 1. PowEBS AND Duties in Consteucting AND 'WOEKING. Lien on Lands — Unpaid Vendor — Injunction.] — Where the unpaid vendor of land taken by a railway company has commenced an action against the company to enforce his lien, and an order has been made in such action that the defendants shotdd, on or before a day named, pay the purchase-money and interest, with a declaration that the plaintiff was entitled to a lien on the lands in respect of the purchase- money, interest, and costs, and that in default of payment the plaintifE was to be at liberty to apply to enforce such lien, such order containing no order for sale, the court will on default in payment, there being evidence that the land is unsaleable, grant an injunction to restrain the defendants from running trains over the railway and from continuing in possession of the land. Williams v. Aylesbury and Suckingham Rail- way (21 W. R. 819), and Munns v. Isle of Wight Railway (5 L. R., Ch. 414), discussed. Allgood V. Merrybent and Darlington Railway, 33 Ch. D. 571 ; 55 L. J., Ch. 748 ; 55 L. T. 835 ; 35 W. R. I80--Chitty, J. Surplus Lands — Debenture Stock — Charge —Priority.]— Section 23 of the Railway Com- panies Act, 1867, does not give to the holders of debenture stock in a railway company any lien or charge on the surplus lands, or on the pro- ceeds of the sale of surplus lauds of the company, nor does that section give debenture-holders any priority in payment over judgment creditors of the company in proceedings taken by such creditors under the Judgments Law Amendment Act, 1864, for the sale of surplus lands of the railway company. The right to priority in pay- ment given to debenture-holders by s. 23 arises in the following cases at all events — (1) in the distribution of moneys collected under s. 4 of the Railway Companies Act, 1867, by the receiver appointed under that section ; (2) in the winding- up of an abandoned railway under the joint provisions of the Abandonment of Railways Acts, 1850 and 1869, and of the Companies Acts, 1862 and 1867 ; and (3) in the working out of a scheme of arrangement under the provisions of the Railway Companies Act, 1867. IIull, Barns- ley, and West Riding Railway, In re, 40 Ch. D. 119 ; 58 L. J., Ch. 205 ; 59 L. T. 877 ; 37 W. R. 145— C. A. Station-" No Goods or Cattle Station at."] — In an action the plaintifE asked for an injunction to compel the defendants to pull down a goods station and cattle sheds which they had erected 140 yards from Bala Station, although it was pro- vided by their private act " that at that station there should be no goods or cattle station." The plaintiff had not objected to the buildings till they were nearly completed, owing to his being abroad at the time, and ignorant of their erection till his return. The defendants contended that the buildings in question had not been erected "at" the station, as they were 140 yards off; that if they had been, it was for the public con- venience they should be there, and that the plaintiff was precluded by acquiescence from insisting on his claim ; — Held, that the erections were a breach of the provisions of the act, and that the plaintiff was entitled to his injunction. Price V. Bala and Festiniog Railway, 50 L. T. 787— Chitty, J. Property in Materials Delivered hut not Fixed — Engineer's Certificates.] — By an agree- ment, made between the plaintiff company and the defendant, a contractor, for the construction of a railway, it was provided that, once a mouth, the company's engineer should certify the amount payable to the contractor in respect of the value of the materials delivered, and that such certifi- cates should be paid by the company seven days after presentation : — Held, that the property in "materials delivered," upon their being certified for by the engineer, passed to the company, though the materials were not fixed. Banbury and Cheltenham Railway v. Daniel, 54 L. J., Ch. 265 ; 33 W. R. 321— Pearson, J. Stoppage of all Trains at Particular Station.] — By feu charter, dated 1863, between A., the proprietor of land through which a railway was authorised to run, and the railway com- pany, it was provided that the company should be bound to erect on a piece of ground conveyed to them by A. at a nominal feu rent, " a station for passengers and goods travelling by the said " railway, "at which all passenger trains shall regularly stop," to be called Crathes Station. The station was erected. Subsequently certain trains were run, namely (1) excursion trains at low fares to certain places on the line, but not to Crathes Station. They were advertised by special handbUls, and were not included in the time-tables except in error. (2) Trains called the Queen's messenger trains, ran by arrange- ment with the Home Office, who paid the rail- way company a subsidy. (3) Trains called the Post Office trains, ran by arrangement with the Post Office, for which a subsidy was also paid. The Queen's messenger trains and the Post Office trains only ran during her Majesty's stay at Balmoral ; but they were advertised in the rail- way company's time-table, and through passen- gers were allowed to travel by them. They stopped at Crathes by signal, but did not stop regularly for setting down or taking up passen- gers. There was no contract with the Home Office or Post Office that they should not do so. A. sought declarator that all trains, including the above, except only such as might be hired for an individual or individuals for his or their- 3 D 2 1543 RAILWAYS. 1544 exclusive use, should regularly stop :— Held, that the trains called the Queen's messenger trains, and the Post Office trains, fell within the terms of the contract ; but that the excursion trains in the circumstances materially differed from ordinary passenger trains, and did not come within the obligation. Bv/rnett T. Great North of Scotland Maihoay, 10 App. Gas. 147 ; 54 L. J., Q. B. 531 ; 53 L. T. 507— H. L. (Sc). Junction with Private Siding— Expense of Fresh Signals— Board of Trade Order.] — The plaintiff and his predecessors in title, as owners of land adjoining a single line of railway, had ever since the year 1861 used a junction siding connecting the railway with a foundry on their land, the siding being the only access to the foundry. The defendants, the railway company, having doubled their line, the Board of Trade, acting on the report of their inspector, and as a condition for certifying the line to be fit for traffic, required the company either to provide the junction of the siding with the modem and improved system of interlocking and signalling apparatus, or to remove the junction, which was of an old-fashioned description. The company then called upon the plaintiff to execute the worli: or pay the costs of it, but this the plaintiff declined to do, whereupon the company took up the junction points : — Held, by Bacon, V.-C, that the plaintiff had, under s. 76 of the Kail- ways Clauses Consolidation Act, 1845, a statu- tory right to the use of his siding in connexion with the company's railway, the company's par- liamentary powers being subject to that right ; and an injunction was therefore granted re- straining the company from continuing to pre- vent communication between his siding and the railway, and compelling the company to restore the junction : — Held, on appeal, that as the plaintiff's predecessors in title had acquired a perpetual right to use the siding under a clause as to sidings in an old local act for making a tramway, which had since been converted into the railway of the defendants, and the subse- quent acts contained saving clauses sufficient to protect all rights acquired by the plaintiff under the old act, the case did not depend on the Rail- ways Clauses Act, and that the plaintiff re- tained the right acquired under the old act to use the siding without contributing ,to the ex- pense of the new apparatus, such act containing nothing to oblige the plaintiff to make or pay for the interlocking apparatus. Woodruff v. Brecon and Merthyr Tydvil Railway, 28 Ch. D. 190 ; 54 L. J., Ch. 620 ; 52 L. T. 69 ; 33 W. K. 125— C. A. Held also, that if the case had turned on the 76th section of the Eailways Clauses Act, the court would not have decided the question whether the plaintiff was bound to pay for the interlocking apparatus, without iirst ascertain- ing what, in the year 1845, was included in the terms " offset plates " and " switches " used in that section. IT>. Power to Underpin Buildings on Adjoining Lands — Eetaining Wall of Bailway.] — A rail- way company had power to underpin or strengthen buildings on lands adjoining their line. They carried their line in a deep cutting close beside a building belonging to the plain- tiffs, and having given the required notice that they intended to underpin this building, they made a wall of concrete to support the plain- tiff's building, part of the thickness of whichi was under the plaintiff's building, and part on the company's land, the whole wall forming the- retaining wall of the railway cutting: — Held, that the fact that the concrete wall was also the retaining wall of the railway did not make it the less an " underpinning " within the meaning- of the act ; and therefore that the company had not acted beyond their powers in making the wall on the plaintiff's land. Stevem v. Metro- politan District Railway, 29 Ch. D. 60 ; 54 L. J., Ch. 737 ; 52 L. T. 832 ; 33 W. K. 531— C. A. Broken Bridge in Navigable Biver — Bemoval of Debris.] — The North British Railway (New Tay Bridge) Act, 1881, gave the North British Railway authority to erect a new bridge over the Tay a little higher up the river than one blown down on 28th December, 1879. S. 21 of this act provided, " The company shall abandon and cause to be disused as a railway so much of the North British Railway as lies between the respective points of junction therewith of rail- way No. 1 and railway No. 2 ; and shall remove the ruins and debris of the old bridge, and all obstructions interfering with the navigation caused by the old bridge, to the satisfaction of the Board of Trade." The magistrates of Perth,, whose jurisdiction extends down the river to- within about three miles of the old bridge, raised an action for declarator and implement t — Held (1) that the special act imposed an absolute obligation to remove the old ruins and debris of the old bridge ; and s. 21 did not give the Board of Trade a discretionary power to dis- pense with the performa,nce of any part of this* obligation ; and it followed that the respondents had an interest to obtain a declarator as to the extent of the obligation ; but (2) dissenting from the judgment of the court below, the- obligation did not become immediately prestable ; and (3) the import of the expression "to the- satisfaotion of the Board of Trade " was, that though not bound to submit their plans of removal, including the time and manner, yet, as a matter of prudence, the company ought to do so ; (4) that in the circumstances it would be inexpedient, though hardly incompetent, to do more now than simply ordain the company to remove the whole ruins and debris in terms of s. 21, for to order the removal " forthwith "might unduly hamper the discretion of the Board of Trade ; and if the company were guilty of undue delay in applying to the Board of Trade ; or if they should proceed at their own hand so as to cause obstruction to navigation ; or it after obtaining the sanction of the Board of Trade to some scheme of removal, they failed to properly execute it, or any conditions attached, the respondents, on application to the court had an effective remedy. North British Railway V. Perth, Provost of, 10 App. Cas. 579— H. L. (Sc). Bridges — Opening Span— Detention of Vessel,] —A railway company carried its line over the river D., which was a navigable river, by a bridge with an opening span : — Held, that the railway company were not bound, by s. 15 of the Railway Clauses Act, 1863, to open the bridge for a barge with a mast so constructed that it 1545 EAILWAYS. 1546 oould be lowered, and that refusing to open the bridge for such a vessel was not a detention ■within the meaning of the act. West Lancashire Railway v. Iddon, 49 L. T. 600 ; 48 J. P. 199— D. Bepair — Highway carried over Eail- ■way.] — Where a railway crosses a highway, and the road is carried over the railway by means of a bridge in accordance with the provisions of s. 46 of the Railways Clauses Consolidation Act, 1 S45, the railway company are bound to keep in repair the roadway upon the bridge, such road- •way being part of the bridge which by the section the company are to maintain. Bury ■(^.Kayor) v. Zanoashire and Torhsliire Railway, 20 Q. B. D. 485 ; 57 L. J., Q. B. 280 ; 59 L. T. 193 ; 36 "W. E. 491 ; 52 J. P. 341— C. A. Affirmed in H. L., W. N., 1889, p. 156. SiTersion of Boad anthorised by special Act — Sanger — Iqjunction.] — The B. Railway Com- pany had, by their special act, power to divert roads and make the substitutions shown on their deposited plans. The plans showed, as a sub- stitute for a road passing along the side of a mountain on which part of the Mne was to be •constructed, a curved road above the old one to be cut out of the mountain side. The railway company had taken possession of the old road and made an embankment upon it, upon which they had laid a portion of their line, which was in use for ballast trains, used in the construction of the line, but not open to the public. They had made the new road, but it was made dan- gerous in winter weather by the constant falling upon it of stones from the steep slope of the mountain above it. This was an action by the Attorney-General on the information of the local board for the district claiming an injunction to restrain the railway company from using the old load untU they had caused a sufficient road to be made in its stead : — Held, that s. 53 of the Railways Clauses Act, 1845, applied notvrith- -standiug the fact that the taking of the old road and substitution of the new were authorised by the company's special act, and that the injunction must be granted. On the' company's undertaking forthwith to lower the inclination ■of the slope of the mountain above the road so as to make the road safe, the injunction was sus- pended. Attorney- General v. Barry Docli and Railway Compaim/, 35 Ch. D. 573 ; 56 L. J., Ch. 1018 ; 56 L. T. 559 ; 35 W. R. 830 ; 51 J. P. •644— North, J. Nuisance — Statutory Powers — Land Fur- chased otherwise than under Compulsory Powers.] — A railway company, having, besides the ordinary compulsory powers of taking land, power to purchase by agreement additional lands, not exceeding fifty acres in all, in such places as should be deemed eligible for any of •certain specified purposes connected with the undertaking which it should deem requisite, bonS. fide selected and acquired additional lands and used them without negligence for one of the purposes authorised, to wit, as a dock or yard for the reception of cattle travelling wpon the line. A nuisance was thereby caused to adjoining occu- piers : — Held, that the nuisance, being a necessary consequence of the use of the lands for a purpose expressly authorized by Parliament, could not be restrained by injunction. Rex v. Pease (4 B, & Ad. 30), VaVfghan v. 'faff Vale Railway (5 H. & N. 679), and Hammersmith Railway Company v. Brand (4 L. E., H. L. 171) followed. Metropolitan Asylum District v. Sill (6 App. Cas. 193) distinguished. London, Brighton, and South Coast Railway v. Trioman, 1 1 App. Cas. 45 ; 55 L. J., Ch. 354 ; 54 L. T. 250 ; 34 W. R. 657 ; 50 J. P. 388— H. L. (E.) Liability for sending Water on adjoining Lands for Protection of Defendants' Premises. ] — By reason of an unprecedented rainfall a quantity of water was accumulated against one of the sides of the defendants' railway embank- ment, to such an extent as to endanger the embankment, when, in order to protect their embankment, the defendants cut trenches in it by which the water flowed through, and went ultimately on to the land of the plaintiff, which was on the opposite side of the embankment and at a lower level, and flooded and injured it to a greater extent than it would have done had the trenches not been cut. In an action for damages for such injury, the jury found that the cutting of the trenches was reasonably necessary for the protection of the defendants' property, and that it was not done negligently : — Held, that though the defendants had not brought the water on their land, they had no right to protect their property by transferring the mischief from their own land to that of the plaintiff, and that they were therefore liable. Whalley v. Lancashire and TorJishire Railway, 13 Q. B. D. 131 ; 53 L. J., Q. B. 285 ; 50 L. T. 472 ; 32 W. E. 711 ; 48 J. P. 500— 0. A. 2. Mines and Minebals. BTotlce by Owner of Intention to Work — In- junction — Minerals worked by Quarrying.] — An owner of minerals under or near a railway is entitled to give notice under s. 78 of the Rail- ways Clauses Act, 1845, of his intention to work them, although he intends to let them and not to work them himself. But a notice given with- out any real intention or probability of working or letting the minerals would be invalid, and the court would restrain the owner from acting upon it. Such a notice is not invalid or un- reasonable merely because it includes the minerals under a long extent of railway. Sec- tions 77 and 78 of the Railways Clauses Act, 1845, apply to minerals worked by open quarry- ing as well as those which are got by under- ground working. Midland Railway Company V. HauneliMiood Brick and Tile Company (20 Ch. D. 552) approved. Midland Railway v. Robin- son, 37 Ch. D. 386 ; 57 L. J., Ch. 441 ; 57 L. T. 901 ; 36 W. E. 650— C. A. Working — Tunnelling under Bailway — Com- pensation.] — S. 80 of the Railways Clauses Con- solidation Act, 1845, applies to minerals lying more than forty yards from a line of railway, and enables the owner of minerals, whose access to them is cut off, by reason of a railway com- pany having purchased from him the minerals lying under their line of railway or within forty yards from it to tunnel under the railway for the purpose of working his minerals which are on the other side of it. And this power extends, not only to minerals in the ordinary 1547 EAILWAYS. 1548 sense of the word, but also to such a substance as clay, which is usually worked from the sur- face. And by s. 81 the mineral owner is en- titled to be compensated by the company for any additional expense caused by his having to work the minerals in this way. Midland Rail- way T. Miles, 30 Ch. D. 634 ; 55 L. J.. Ch. 251 ; 53 L. T. 381 ; 34 W. E. 136— Pearson, J. The defendant was the owner of the minerals lying in. and under a triangular piece of land, which was completely surrounded by three lines of railway belonging to the plaintiffs, and also of the minerals lying under certain portions of those three lines. The company had purchased the surface of the triangular piece of land, and also the surface of the land on which those parts of the three lines were constructed. The mine- rals in and under the lands so purchased were not in the first instance purchased by the com- pany. The defendant, in April, 1885, gave the company notice, under s. 78 of the Eailways Clauses Act, 1845, of his intention to work the minerals belonging to him in and under the triangular piece of land, and also under the lines of railway. The company gave the defendant notice that they were willing to make compen- sation for the minerals under the lines of rail- way, and arbitrators were appointed to assess the compensation. The defendant then gave the company notice that he intended to work the minerals in and under the triangular piece of land, and for that purpose to enter upon and across the line of railway : — Held, that such a mode of working would be a trespass, and that the defendant must be restrained from working in that way, but that he would be entitled to tunnel under the railway in order to work the minerals in and under the triaugulaj" piece of land, and that the company must compensate him for the extra expense of so working. Ih. A railway company under the powers of a special act and of the Railway Clauses Act, 1845, bought a piece of land on part of which they made three railways leaving the rest of the land within the triangle formed by the railways, except two small pieces on the west of their lines. The landowner from whom they bought owned the adjoining land on the east. This he afterwards sold, but acquired a right of way over it. He had also bought the two severed pieces on the west. The conveyances to the railway company did not include the minerals under the land : — Held, that as under the special act and under s. 80 of the Railways Clauses Act, the land- owner when he sold the land was entitled to make passages under the railway from his land on the east, no right of way over the railway for the purpose of working the minerals would be implied, and that he had not now such right of way. And that, being neither "owner, lessee, nor occupier " of- the land to the east, he had no right, under s. 79 of the Eailways Clauses Act, to work the minerals on the land within the triangle by means of passages under the rail- way ; but he might work the minerals from the pieces of land on the west, and under s. 81 get compensation for extra expenses. Midland Bail- way V. Miles, 33 Ch. D. 632 ; 55 L. J., Ch. 745 ; 55 L. T. 428 ; 35 W. E. 76— Stirling, J. Held also, that under s. 79 of the Eailway Clauses Act the owner of the minerals might, having lawfully made a communication with the land sold to the railway company, work the minerals by open workings, that being the usual mode of working ;Buch minerals in the district where the same were situate. li. 3. EoLLiNG Stock. Exemption from Distress — "Work."] — A locomotive engine, which was hired by a rail- way contractor from the respondents, was seized . under a distress for rent due from the contractor to the appellants. At the time the engine was seized it was standing in a shed which the con- tractor rented from the appellant, and which was connected by a siding with the railway : — • Held, that the engine was rolling-stock in a " work " within the meaning of s. 3 of the Railway Eolling Stock Protection Act, 1872, and was therefore not liable to distress for rent pay- able 'by the tenant of the work. The " work" in s. 3 means any establishment or place, used for the purpose of trade or manufacture, which is jConnected with a line of railway by sidings along which the rolling stock may be propelled. Maston Estate Company v. Western Waggon CoTivpany, 54 L. T. 735 ; 50 J. P. 790— D. Ezecution against — Railway ancillary to Docks.] — The protection against seizure afforded by the Eailway Companies Act, 1867, ss. 3, 4, applies to the railway plant of every company constituted by a statute for the purpose of con- structing or working a railway, even although the railway is merely a subordinate and ancillary part of the undertaking authorised by the statute. By two local statutes a company was authorised to construct a wet dock, a lock forming an entrance to the dock, and two short railways, each about half a mile long, to connect the dock with other railways. The plaintiffs had lent money to the company upon mortgage-deben- tures. The defendants were creditors of the company, and having obtained judgment, seized in execution certain railway plant belonging to it. The plaintiffs having brought an action for an injunction to prevent the defendants from realizing their execution : — Held, that the dock company was a " company " within the Eailway Companies Act, 1867, s. 3, and that the railway plant belonging to it was protected from seizure by s. 4. Great Northern SaUway v. Taliourdin, 13 Q. B. D. 320 ; 58 L. J., Q. B. 69 ; 50 L. T. 186 ; 32 W. E. 559— C. A. 4. Judgment Against. Exemption of Boiling Stock from Execution.] — See preceding case. Appointment of Beceiver by Judgment Creditor — Priority.] — A judgment creditor of a railway company obtained an order for a receiver and manager under s. 4 of the Eailway Companies Act, 1867. After this, another judgment creditor applied for a similar order, which was made without prejudice to the former order:— Held, on appeal, that a judgment creditor gains no priority by- obtaining a receivership order, that when a receivership order has been made and is in force, another judgment creditor gains no benefit whatever by obtaining a similar order, and that such subsequent order ought not to be made. The second order was therefore dis- charged. Mersey Railway, In re, 37 Ch. D. 1549 610 ; 57 L. J., Ch. 283 ; 372— C. A. EAILWAYS. 1550 L. T. 745 ; 36 W. E. Bailway ancillary to Dock.] — A company formed by Act of Parliament for the purpose of making a dock, was afterwards authorised, by an Act of Parliament obtained by a railway company, to make a short piece of railway over its own land connected with the line of the rail- way company, and to work it for through traffic : — ^Held (Lopes, L.J., doubting), that the dock company was a company " constituted by Act of Parliament for the purpose of making a rail- way," and so was a railway company within the meaning of the Railway Companies Act, 1867 ; that a receiver and manager could therefore be appointed on the application of a judgment creditor ; and that the receiver and manager must be appointed of the whole undertaldng of the company, and not merely of the railway belonging to it. East and West India Dock Company, In re. 38 Ch. D. 576 ; 57 L. J., Ch. 1053 ; 59 L. T. 237 ; 36 W. E. 8i9— C. A. Discretion of the Court] — In exercising the jurisdiction afforded by s. 4 of the Railway Companies Act, 1867, relative to the appointment of a receiver and manager of a railway company at the instance of judgment creditors, the court whilst not assisting in anything of a speculative nature with regard to the future, should take a fair broad view of the present position and exigencies of the company, and act for the general benefit of all the creditors. But in exer- cising such jurisdiction, the court is not to con- sider itself fettered by any contract or arrange- ment which may have previously been entered into between the railway company and any person, although in the exercise of its discretion the court will have regard thereto. An applica- tion was made by first debenture-holders of a railway company to discharge an order made in chambers, appointing F. one of the joint managers of the company, with a salary. The first debenture-holders sought to discharge the order on the ground that the company was not financially in a position to incur the extra expense, which they alleged was unnecessary, and that their interests — their dividends being in arrear — ought to be considered before the extra expense was incurred : — Held, that the first debenture-holders, though creditors, had no voice in the management of the company while it was a going concern, notwithstanding that when their interest was in arrear they had a statutory right to the appointment of a receiver ; and, therefore, that the first debenture-holders had no right to dictate what manager should be appointed, nor what salary he should receive ; and that, under the circumstances, their applica- tion must be refused. Hull, JSarnsley, and West Hiding Railway, In re, 57 L. T. 82 — Chitty, J. Scheme of Arrangement — Debenture Stock Issned under Scheme — Working Expenses — Assent — Priority.] — The E. Co. recovered judg- ment against the N. & K. Railway for the sum of 2,881Z. for rails supplied to make the line. The N. & K. Railway, being unable to meet their engage- ments, and indebted inter alia upon mortgages prior to the judgment to the extent of 37,900?., filed a scheme of arrangement in the English Court of Chancery, and obtained power to issue debenture stock to the amount of 70,000?. to pay off their debts, viz., 20,000?. A. stock and 50,000?. B. stock, which were declared by the scheme to be respectively first and second charges on the undertaking of the N. & K. Rail- way. The B. Co. appeared on the settlement of the scheme, and had it altered (article 3) so as to provide for payment of one-third of their debt out of the A. stock, they undertaking not to proceed for the balance until one month after the completion of the line, or six months after the confirmation of the scheme ; and by the order confirming the scheme it was declared that it did not prejudice outside creditors, save so far as the rights of judgment creditors were afiected by article 3 so amended. The debenture stock was then issued. The E. Co., not having been paid, filed a bill to compel payment, and the suit was compromised. ' P., another judgment creditor of the railway, commenced proceed- ings for a receiver. Upon a reference to settle priorities : — Held (1), that the claim of the E. Co. came under the head of "debts" of the company, and not under the head of " working expenses" or "other proper outgoings" within s. 4 of the Railway Companies Act, 1867 ; and (2) that the effect of the E. Co.'s assent to the scheme implied from their intervention, was to postpone their claim to the A. and B. debenture stocks. The claimant company having appealed, the court were equally divided, and the judgment therefore stood. Navan and Kingseourt Rail- way, In re, Price, Eso parte, 17 L. R., Ir. 398 — C. A. Surplus lands — Debenture Stock — Priority.] — See Hull, Barnsley, and West Riding Rail- way, In re, ante, col. 1541. 5. Offences aoainst. False Account of Goods — Signing Note.] — F., a farmer, was in the habit of sending milk by railway in tankards with the quantity stamped outside. One day F.'s daughter wrote F.'sname on the consignment note, stating that there were eighteen gallons, whereas there were twenty-one gallons, and only eighteen were paid for. F. had told his servants not to fill up the full quantity in the note, because the toll was too high, but there was no evidence that he knew of this note : — Held, that F. could not be convicted under s. 99 of the Railways Clauses Act, 1845, as he had not signed the consignment note. Frith V. Simpson, 48 J. P. 150— D. Trespassing on Railway — Public Bight of Way before making Bailway — Jurisdiction.] — The appellant was convicted by justices in petty sessions — (1) under the 38th section of 45 & 46 Vict. c. ccxiv., for having unlawfully trespassed on a railway in such a manner as to expose him- self to danger, and (2) under section 23 of the Regulation of Railways Act, 1868, for having been unlawfully on the railway after receiving warning not to go or pass thereon. There was, prior to the making of the railway, and prior to the acts of Parliament authorising the same, a public right of way for persons on foot over the land now occupied by the railway at the place where the appellant crossed, and the appellant went upon and crossed the railway, in the asser- tion of the right of way which formerly existed 1551 RAILWAYS. 1552 and believing that he was entitled to do so by virtue thereof : — Held, that the conviction on both summonses was wrong — (1) because the claim of the right of way set up by the appel- lant ousted the jurisdiction of the justices to determine the case ; and (2) because there were no provisions in the act of Parliament extin- guishing the right of way, which was conse- quently still in existence. Cole v. Miles, 57 L. J., M. C. 132 ; 60 L. T. 145 ; 36 W. E. 784 ; 53 J. P. 228— D. 6. ASBITEATION BETWEEN EAILWAYS, Agreement "confirmed and made binding" by, and scheduled to, Private Act— Jurisdiction of Bailway Commissioners.] — An agreement was entered into between two railway companies, one of the clauses of which provided that all questions in difference arising out of the agreement should be determined by arbitration in manner provided by the Railway Companies Arbitra- tion Act, 1859. A private act of Parliament was subsequently passed, in which the agree- ment was set out verbatim as a schedule, and it was provided by the act that the scheduled agreement should be "confirmed and made bind- ing " upon the parties thereto. Differences hav- ing arisen, one of the companies applied to the railway commissioners to determine the ques- tions in dispute under the provisions of the Eegulation of Railways Act, 1873. The other company having obtained a rule nisi for a pro- hibition on the ground that without their consent the railway commissioners had no jurisdiction to entertain the application : — Held, that the right to refer differences to arbitration was derived from the agreement itself ; that the difference was not "required or authorised to be referred to arbitration under the provisions of any general or special act " within the mean- ing of s. 8 of the Eegulation of Railways Act, 1873, and that the railway commissioners had no jurisdiction to undertake the arbitration. Reg. V. Midland Railway or Great Western Railway, 19 Q. B. D. 540 ; 56 L. J., Q. B. 585 ; 57 L. T. 619 ; 36 W. E. 270 ; 51 J. P. 550 ; 5 Kev. & Mao. 267— D. Agreement to refer Disputes— Action in High Court — Jurisdiction — Time for Application.] — Where there is an agreement between railway companies to refer their disputes to arbitration under the provisions of the Eailway Companies Arbitration Act, 1859, the true effect of ss. 4 and 26 of that act is to make it obligatory upon the court, if either of the companies insists on it, to make an order to refer the disputes in accord- ance with the agreement ; but these sections do not deprive the court of jurisdiction to deal with the matter and adjudicate upon any dispute of the companies if neither of the companies insist on their right to have the dispute referred to arbitration under the agreement. London, Chat- ham and Dover Railway v. South-JEastera Rail- way, 40 Ch. D. 100 ; 58 L. J., Ch. 75 ; 60 L. T. 370 ; 37 W. E. 65— C. A. Where an action has been brought by one railway company against another in respect of a dispute between them, and the court has tried and adjudicated on the matter without either of the companies insisting on the point that the jnatter ought to be referred to arbitration, though the point had been raised by one of the companies in their defence, it is too late for the unsuccessful company to raise, at the hearing of an appeal, the point that the dispute should be referred to arbitration under the provisions of the Eailway Companies Arbi- tration Act, 1 859. lb. Traffic Facilities — Through Kates — "Con- nected with."] — The special act of the C. W. Eailway provided that the L. & N. W. Eailway, the G. W. Eailway and other companies (seven in all) should afford all proper and sufficient facilities, including through rates, to traffic pass- ing to, from, or over the C. W. Eailway, from or to any railway of the seven companies, or any railway connected with them, and that the terms and conditions, pecuniary or otherwise, on which the traffic facilities should be respectively af- forded, and the amount and apportionment of the through rates should, failing agreement, be determined by arbitration in manner provided by the Eegulation of Eailways Act, 1873 : — Held, that such special act requires facilities to be afforded to all traffic passing over the C. W. Railway which either comes from or is destined to some point upon and which during its whole course passes uninterruptedly over railways be- longiag to one or more of the seven companies, or connected for purposes of management or working with one or more of the said seven companies ; that the said special act does not grant through rates absolutely ; that the suffi- ciency of through rates existing at any time and the propriety of gi-anting others are among the matters which, failing agreement, are required by the special act to be referred to arbitration ; and that the words "connected with," in the said special act, mean connected for the pur- poses of management or working, and not merely physically connected. Great Western Rail- way V. Central Wales Railway, 5 Nev. & Mac. 1— D. 7. Railway Commissionees. Jurisdiction — Undue Preference.]— The duties imposed on railway companies by the Eailway and Canal Traffic Act, 1854, s. 2, are confined to traffic ; therefore, the Eailway Commissioners have no jurisdiction to determine complaints against a railway and dock company for inequality of dues levied in respect of a dock forming a distinct part of their undertaking, although such company be also owners of other docks not distinct from but connected with their railway. East and West India Dnch Company V. Shaw, Savill 4- Company, 39 Ch. D. 524 ; 57 L. J., Ch. 1038 ; 60 L. T. 142 : 6 Nev. & Mac. 94 — Chitty, J. Arbitration.]- iSsfi Reg.\. Midland Rail- way, supra. Power to state Special Case.] — On the hearing of an application made under the Eegulation of Railways Act, 1873 (36 & 37 Vict. c. 48), s. 15, the Eailway Commissioners have power to state a special case for the opinion of the High Court. Sail V. London, Brighton, and South Coast Railway, 15 Q. B. D. 505 ; 53 L. T. 345 ; 5 Nev. & Mac. 28— D. Appeal to Court of Appeal on Case stated.]— There is no appeal to the Court of Appeal from 1553 RAILWAYS, 1554 the decision of a divisional court upon a case stated by the Railway Commissioners under s. 26 of the Eegulation of Railways Act, 1873, even though leave to appeal has been given. Sect. 45 of the Judicature Act, 1873, does not apply to appeals from the Railway Commis- sioners. HiUl v. London, Brighton, cmd South Coast Railway, 17 Q. B. D. 230 ; 55 L. J., Q. B. 328 ; 54 L. T. 713 ; 34 W. R. 558 ; 5 Nev. & Mac. 28— C. A. RAPE. See CRIMINAL LAW. RATES. loor Bates.] — See Pook Law. Church Bates.] — See Ecclesiastical Law. "Water Bates.]— &c Watek. County Bates.] — See County. Levied by Municipal Corporation.] — See CoE- POEATION. Highway Bates.] — See Way. In Uetropolis.] — See Mbteopolis. TTnder PnbUc Health Act.] — See Health. RATIFICATION. See CONTRACT, IL RECEIVER. Equitable Execution.] — See Execution. Under Bailway Companies Act, 1867.]— &e ante, cols. 1548, 1549. ' In other Cases.]— &e Peacticb, III. A. 8, 1. RECOGNIZANCE. See JUSTICE OF THE PEACE (PRACTICE). RECORDER. See CORPORATION. RECOVERY OP LAND. See re£E., ante, col. 1496. RECTIFICATION. Of Eegister.] — See Company, VI. 7. Of Deeds.] — See Deed and Bond, I. 4. RECTOR. See ECCLESIASTICAL LAW. REFERENCE. See ARBITRATION. REFORMATORIES. See SCHOOLS. REFRESHERS. See COSTS, VI. 1, *. i. REGISTRATION. Of Seeds relating to Land.] — See Deeds. Of Bills of Sale.]— &e Bill op Sale. Of Patents.] — See Patent. Of Shares.] — See Company. Of Trade-marks.] — See Tkade. Of Voters.] — See Election Law. EENT-CHARGE. 1555 Of Copyright.]— -See Copyeight. Vacating Registration of Lis Pendens.]— jSff Lis Pendens. Of Judgments.] — See Judgment. 1556 RELEASE. See DEED. REMOVAL. Of Paupers.]— iSee Pooe Law. From OflSces.]— &e Quo Waeeanto. action against the co-owners for contribution. Christie v. Barker, 5.S L. J., Q. B. 537— C. A. Belease — Contribution,] — G. died in 187.5, having devised copyhold land to W. G., charged with an annuity to the plaintiff. On the 24th of July, 1876, W. G. contracted to sell part of the land to the defendant, and on the 31st of July, 1876, W. G. surrendered the residue of the land in fee to W., and the plaintiff by deed released the land surrendered to W. from the annuity. In 1883 the plaintiff sued the defendant for arrears of the annuity: — Held, that under ». 10 of Lord St. Leonards' Act, the defendant was liable to pay such a proportion of the rent-charge as was represented by his part of the land with regard to the whole land origi- nally charged. Booth v. Smith, 14 Q. B. D, 318 ; 54 L. J., Q. B. 119 ; 51 L. T. 742 ; 33 W. E. 142— C. A. Tithe,]— (See Ecclesiastical Law. RENT. See LANDLORD AND TENANT. RENT-CHARGE. Becovery of Arrears — Assignment of Part of Lands.] — An action for debt lies for the recovery of arrears of an annuity charged upon land against the assignee of part of such land ; and it makes no difference whether the annuity was created by deed or will. Booth v. Smith, 51 L. T. 395 ; 47 J. P. 759— D. Action of Debt — Liability of Owner of Part of Lands charged,] — The defendant was the owner and occupier of a portion of certain lands in the parish of P., which, by a private act, were charged with the payment to the vicar of an annual sum of 270?., in lieu of tithes. The act provided that, if the annual rents were in arrear, the vicar was to have such and the same powers and remedies as by the laws and statutes of the realm are provided for the recovery of rent in arrear ; and also, that if no sufficient distress were found on the premises, the vicar might enter and take possession of the same until the arrears were satisfied. Four years' arrears of the annual rent accrued in respect of the whole of the lands charged, during the whole of which period the defendant was the owner and occupier of a portion only of such lands : — Held, that the vicar might maintain an action of debt against the defendant for the whole amount in arrear ; the remedy by real action, which was a higher remedy than the action of debt, having been abolished by 3 & 4 Will. 4, c. 27, s. 36 :— Held, further, that the defendant had his remedy in an I REPRESENTATIONS. See FKAUD AND MISREPEESENTATION. Amounting to Contract.] — See Martin v. Spicer, ante, col. 1075. Liability of Principal for Acts of Agent.] — See Principal and Agent, I. 2, J. REPUTED OWNERSHIP. See BANKRUPTCY, VIII. 1, J. REQUISITIONS. See VENDOR AND PURCHASER. RES JUDICATA. See ESTOPPEL. RESTITUTION. Of Property.]— &e Criminal Law, II. 16. Of Conjugal Eights.] — See Husband and Wipe, II. 1557 EEVENUE— Stomps. 1558 RESTRAINT OF TRADE. Contracts as to.] — See Contract, III. 3, g. RETURNING OFFICER. See CORPORATION— ELECTION LAW. REVENUE. I. Stamps, 1557. II. Customs and Excise, 1560. III. Taxes and Duties. 1. Bodies Cin-porate and ZJiiinoorporate, 1562. 2. Property Tax, 1564. 3. Inhabited Mouse Duty, 1565. 4. Ineome Tax. a. Property and Pei'sons Liable, 1566. J. Assessment and Deductions, 1570. V. Repayment of Amount overpaid, 1572. 5. Succession Duty, 1573. 6. Prolate Duty, 1576. 7. Legacy Duty, 1578. I. STAMPS. Admissiliility of Unstamped Socnment for any Purpose.]— An unstamped document em- bodying an agreement, not falling within the exceptions specified in 33 & 34 Vict. c. 97, is inadmissible in evidence in civil proceedings for any purpose whatever. Interleaf Publishing Company v. Phillips, 1 C. & B. 315 — Williams, J. Charter-party executed Abroad — Time.] — A charter-party executed entirely abroad, and stamped vnthin two months after it has been re- ceived in this country, can be received in evi- dence, since it falls within the provisions of 33 & 34 Vict. c. 97, s. 15, and not of ss. 67 and 68 of that act. The Belfort, 9 P. D. 215 ; 53 L. J., P. 88 ; 51 L. T. 271 ; 33 W. R. 171 ; 5 Asp. M. C. 291— D. Bill of Exchange drawn Abroad payable in England.] — Section 51, sub-s. 2, of the Stamp Act, 1870, includes bills payable on demand. Therefore a bill drawn in France on the Bank of England was properly stamped by the holder affixing to it and cancelling a penny adhesive stamp. Boyse, In re, Cfrofton v. Crofton, 33 Ch. D. 612 ; 56 L. J., Ch. 135 ; 55 L. T. 391 ; 35 W. R. 247— North, J. Bill of Exchange or Assignment of Money.] — O'C. & Co. contracted with the defendants to supply them with timber, and the defendants were indebted to O'C. & Co. on the contract, in the sum of 460Z. O'C. & Co., while the defen- dants were so indebted to them, addressed a letter to the defendants as follows : — " We hereby authorise and request you to pay to A. the sum of 395Z. 10s. due from you to us for goods sold and delivered by us to you, and the receipt of A. will be a good discharge." This instrument was duly stamped as an assignment, but was not stamped with an impressed stamp as a bill of exchange. In an action on the in- strument, the defendant in his defence denied its validity, on the ground that it was a bill of exchange within the Stamp Act of 1870, and had not been stamped as such before its execution : — Held, that the defence was bad. Adams v. Morgan, 1-t L. R., Ir. 140— C. A. Promissory Note or Agreement to pay Money.] — At the trial of an action to recover money alleged to be due under an agreement, the plaintiff put in evidence (inter alia) the following document : — " I, J. Dawe, promise to pay J. Yeo on his sign- ing a lease .... the sum of 150Z. — J. Dawe." The document, which bore a penny stamp, was stamped at the trial as an agreement. The plaintiff alleged that it embodied the result of previous negotiations in reference to a lease. The defendant alleged that the document was a promissory note within s. 49 of the Stamp Act, 1870. A verdict was given for the plaintiff, and it being doubtful whether there was evidence of the agreement, he was left to move for judg- ment : — Held (diss. Bowen, L.J.), that the docu- ment was not a promissory note within the meaning of s. 49 of the Stamp Act, 1870, inas- much as that act does not apply to a document which is neither given nor accepted as a pro- missory note, and is not in fact such a note. Teo V. Dawe, 53 L. T. 125 ; 33 W. R. 739— C. A. Per Bowen, L.J. The section applies to every document which substantially comprises an effective promise to pay. lb. In order that a document may be a promissory note within s. 49 of the Stamp Act, 1870, it must substantially contain a promise to pay a definite sum of money and nothing more. A document containing a promise to pay money as part of a contract containing other stipulations would not be a promissory note within the act. By an instrument, described as a policy of insurance, after reciting that E. was desirous of being insured with the appellant corporation, and that there had been paid to the corporation the sum of 9?. Vts. id., being the agreed premium for such assurance, it was witnessed that the cor- poration did thereby guarantee to the assured payment of the sum of lOOZ. on May 18, 1967 ; provided that, if the assured should be desirous at any time of surrendering the policy, the corporation would allow to him the surrender value thereof as on May 18 last preceding the date of his notice to surrender, such value to be fixed according to the tables of the corporation for the time being in force with reference to surrenders : — Held, that this instrument was liable to stamp duty as an agreement, and not as a promissory note within s. 49 of the Stamp Act, 1870. Mortgage Insurance Corporation v. Inland Revenue Com/missioners, 21 Q." B. D. 352 ; 57 L. J., Q. B. 630 ; 36 W. R. 833—0. A. Affirming 58 L. T. 766— D. 1559 EEVENUE — Customs and Excise. 1560 Agreement or Payment under Policy of In- surance.] — A policy of assurance upon mort- gage, securing payment of principal and interest to the mortgagee, the assured, is chargeable with the duty of Sd. as an agreement ; and does not fall within the second clause of the schedule to the act as to policies of insurance, which assesses the duty of Id. for any " payment agreed to be made by way of indemnity against loss or damage of or to any property." Mortgage Insurance Corporation v. Inland Revenue Commissioners, 57 L. J., Q. B. 174 ; 58 L. T. 769— D. Conveyance on Sale — Compulsory Sale — Com- pensation for Lobs of Trade.] — The schedule of the Stamp Act of 1870 (33 & 34- Vict. c. 97), prescribes an ad valorem duty on every " con- veyance or transfer on sale of any property." By s. 70 the term " conveyance on sale " in- cludes every instrument whereby any pi'operty upon the sale thereof is transferred to or vested in the purchaser. By deed of conveyance S. & Co. conveyed business premises to a railway company. The deed stated that the jury in a compensation trial under the Lands Clauses Consolidation (Scotland) Act, 1845, had found that S. & Co. were entitled to 28,586Z. 2s. Id., as the value of the premises which had been taken by the company under the powers of their special act ; 14,572?. 16s. 3d. for the value of the build- ings, &c., upon the premises, and 9,499Z. 8s. 3d. as compensation for loss of business, and that the company had paid the three sums so assessed to S. & Co. :— Held, that the 9,499Z. 8s. 3d. al- lowed by the jury as compensation for loss of business was part of the " consideration for the sale " of the premises, and liable to an ad valorem duty accordingly. Inland Revenue Commis- sioners V. Glasgow and South Western Railway, 12 App. Cas. 315 ; 56 L. J., P. C. 82 ; 57 L. T. 570 ; 36 W. E. 241— H. L. (Sc). Bevocable Agreement to grant Permission for Ireotion of Jetty.] — By an instrument not under seal the conservators of the Thames agreed to grant permission during their pleasure to the appellants to construct and retain a jetty in con- sideration of an annual payment yearly so long as the jetty was allowed by the conservators to remain : — Held, that the instrument was not chargeable with stamp duty under 33 & 34 Vict. c. 97 (the Stamp Act, 1870), either as a " con- veyance on sale " within s. 70, or as an instru- ment whereby any property was transferred to or vested in any person, within s. 78, or as a "lease or tack," or "bond, covenant, or instru- ment of any kind whatsoever," within the schedule, but only as an " agreement." Thames Conservators v. Inland Revenue Commissioners, 18 Q. B. D. 279 ; 56 L. J., Q. B. 181 ; 56 L. T. 198 J 35 W. E. 274— D. Voluntary Settlement — Reservation of Life Interest — Accounts.] — By deed dated the 12th of July, 1883, the settlor, in pursuance of a power given by articles of partnership, ap- pointed and transferred to his sons his shares in the partnership business, as from the 1st of October, 1883, or as from the settlor's death, which should first happen, provided that such appointments were conditional upon the execu- tion by the sons before the 1st of October, 1883, of a deed covenanting to pay to the settlor. from the 1st of October, 1883, during his life, interest at 4 per cent, per annum on the value of the shares appointed as aforesaid, and to pay, out of the profits, certain annuities to other persons. The sons executed this last-mentioned deed on the 12th of July, 1883. The settlor died on the 19th of July, 1883 :— Held, that the transfer of the shares was a voluntary settle- ment within the meaning of the Customs and Inland Revenue Act, 1881 (44 & 45 Vict. c. 12), s. 38, sub-s. 2, and that by it an interest for life in the property transferred was reserved to the settlor, and therefore duty was payable under that section on the amount of the shares so transferred. Grossman v. Reg., 18 Q. B. D. 256 ; 56 L. J., Q. B. 241 ; 55 L. T. 848 ; 35 W. E. 303 — D. By a voluntary settlement the settlor assigned to trustees a sum of money, with interest, upon certain trusts, and subject to certain powers, provisoes, agreements and declarations, and it was declared that the trustees should apply the income for the benefit of the settlor and his wife, and children, or, at their discretion, for the benefit of one or more of such persons to the exclusion of the others, and after the settlor's death the money was to be held subject to trusts in favour of his widow and children : — Held, that, notwithstanding the power conferred upon the trustees of depriving the settlor of the benefit of the settled property at their discretion, an interest in such property for life was reserved to the settlor, within the meaning of s. 38, sub-s. 2 (o), of the Customs and Inland Revenue Act, 1881, and therefore on his death duty was payable. Attorney- General -v. Hey wood, 19 Q. B. D. 326 ; 56 L. J., Q. B. 572 ; 57 L. T. 271 ; 35 W. E. 772— D. II. CUSTOMS AND EXCISE. Excise Licence — Betail Dealer— Vine and Spirit Merchant's Traveller.] — A traveller for a fully-licensed fijm of wine and spirit merchants at B. occupied an office and premises at C, where he resided, and where amongst other places he solicited and obtained orders which he forwarded to his employers at B., who delivered the goods so ordered direct to the purchaser. The firm neither rented nor occupied any premises at all at C, nor did they store goods upon their travel- ler's premises. Upon information being exhibited by an inland revenue officer against the traveller under s. 26 of 6 Geo. 4, c. 81 and s. 17 of 30 & 31 Vict. c. 90, charging him with taking an order for spirits at his office at C. without having in force a proper licence authorising him so to do, it was held, that he was a bonl fide traveller taking orders for his employers who were duly licensed to sell spirits, &c., and there- fore not liable to take out a licence. SiucJibery V. Spencer, 55 L. J., M. C. 141 ; 51 J. P. 181— D. "Sweets" Licence — "Foreign Wine" Licence — "Best Pale Sherry, British."]— B., the respondent, was the holder of a licence to retail sweets and made wines, but he was not licensed for the sale of foreign wine. The appel- lant, an officer of Inland Eevenue, visited B.'s shop, and asked for a bottle of the best sherry, and was supplied with a bottle which was labelled " Best Pale Sherry, British," for which 1561 REVENUE— 2'aa;es and Duties. 1562 he paid 2«. The cork of the bottle was sealed and bore upon the seal the word " Sherry." B. was summoned, under s. 19 of 23 Viot. c. 27, for " selling foreign wine by retail without a proper licence." The justices dismissed the information ; — Held, that B. had committed the offence, under s. 19 of the Act, of selling " foreign wine by retail without ii proper licence," because the " Best Pale Sherry " is a foreign wine, and that character is not taken away from it by putting the word " British " underneath it. Richards v. Banks, 58 L. T. 634 ; 52 J. P. 23— D. Dilution of Beer by Publican — mixing Beers of different Strengths.] — By s. 8, sub-s. 2, of the Customs and liland Revenue Act, 1885, " a dealer in or retailer of beer shall not adulterate or dilute beer, or add anything thereto, except finings for the purpose of clarification." The appellant, a publican, had in his cellar a cask of beer supplied by a firm of brewers, and also a quantity of small beer of much less strength. He drew off a certain quantity from the cask of stronger beer, and filled it up with small beer, adding some finings for clarification ; the result, as tested by the quantity of proof spirit in the two kinds of beer, was that the mixture was about 15 per cent, weaker than the beer which was in the cask as it came from the brewers. No water or any other matter or thing (except the finings) was added to the beer. On appeal against a conviction for " diluting " beer under the above section : — Held, that the mixing of the two kinds of beer amounted to a dilution of the stronger beer, and that the appellant was properly convicted. Croftsy. Taylor, 19 Q. B. D. 524 ; 56 L. J.. M. C. 137 ; 57 L. T. 310 ; 36 W. K. 47 ; 51 J. P. 532, 789 ; 16 Cox, C. C. 294— D. Grant of Licences by Justices to Sell In- toxicating Liquors.] — See Intoxicating LlQUOES. Penalty — Uetropolitan magistrates — Juris- diction.] — By 15 & 16 Vict. o. 61, d. 1, an infor- mation " for the recovery of any penalty imposed by any Act or Acts relating to the revenue of excise, and incurred for or by reason of any offence committed against any such Act or Acts," may be heard and determined, if the offence has been committed within the limits of the chief office of Inland Eevenue in London, before a metropolitan police magistrate : — Held, that the provisions of the section applied to informations for penalties imposed by statute in respect of excise ofienoes created after the passing of the act, and therefore, that a metropolitan police magistrate had jurisdiction to hear and deter- mine an information for the recovery of the penalty imposed by s. 4 of the Customs and Inland Revenue Act, 1887, in respect of the new excise offence created by that section. Meg. v. Ingham, 21 Q. B. D. 47 ; 57 L. J., M. C. 87 ; 59 L. T. 62 ; 36 W. R. 811 ; 52 J. P. 550 ; 16 Cox. C. 0. 505— D. See S. C. on rule obtained, 52 J. P. 375 — D. sub nom. Inland Mevenue Commissioners, Mc parte. Gun Licence — Orchard not a Curtilage. ] — An orchard behind the dwelling-house and its out- houses is not within the curtilage, and therefore the occupier who uses a gun there is not exempt from gun licence duty. Asgmth v. Griffin, 48 J. P. 724— D. Carriage Tax — Carriage lent by Coachbuilder during Bepair to Customer's Carriage.] — Where the owner of a carriage, which has accidentally become disabled during the year for which an excise licence has been duly taken out is accommo- dated by his coachbuilder, during the repair of such carriage, with the use of another carriage without any payment, the coachbuilder is not required to take out a licence in respect of such carriage so lent. Davey v. Thompson, 54 L. T. 495 ; 34 W. R. 411 ; 50 J. P. 260— D. Bog Licence — Sheep-Dog Dxemption — Burden of Proof.] — N., a farmer, obtained a certificate of exemption for a sheep-dog, and was summoned for not having a licence. At the hearing the revenue officer proved that he had seen a trial of the dog as a sheep and cattle dog, and that the dog did not obey its master's orders like a cattle dog : — Held, that as the certificate of exemption was some evidence of a right to exemption, the- justices were right in dismissing the information, for the prosecutor had failed to prove that the dog was not a cattle dog. James v. Nicholas, 50 J. P. 292— D. Duty on Male Servants — Groom.] — If a man- servant is employed partially as a groom, but substantially in some other capacity, his employer is exempted by 39 Vict. c. 16. s. 5, from the tax imposed by 32 & 33 Vict. c. 14, s. 19. Yelland v. Winter, 53 L. T. 912 ; 34 W. R. 121 ; 50 J. P. 38— D. H. was employed by W. , a farmer, to attend to the bullocks in his yard and to work on the land, and also to feed W.'s pony. He also cleaned the harness and washed the trap when necessary,, and occasionally drove with his master to and from the railway station. W. occasionally attended to the harnessing, unharnessing, and grooming of the pony himself : — Held, that H. was only occasionally and partially employed as. a groom, and that W. was exempt from the tax. n. III. TAXES AND DUTIES. 1. BODIES CORPORATE AND UNIN- CORPORATE. . Income or Profits of Property — Exemption — Appropriation "for Promotion of Science,"] — By s. 11 of the Customs and Inland Revenue Act, 1885, a duty is imposed upon the annual value, income, or profits of property belonging to any body corporate or unincorporate, subject to an exemption in favour of property which, or the- income or profits whereof, shall be legally appro- priated and applied " for the promotion of edu- cation, literature, science, or the fine arts :" — Held (Lopes, L. J., dissenting), that the property of the Institution of Civil Engineers was entitled to the benefit of the exemption, as it was pro- perty which was appropriated and applied for the promotion of science. Institution of Civil Engineers, In re, 20 Q. B. D. 621 ; 57 L. J., Q. B. 353 ; 59 L. T. 282 ; 36 W. R. 598 ; 52 J. P. 549— C. A. Property of Club — Entrance Pees and Sub- Bcriptions-" Funds voluntarily contributed."] — Exemption was claimed by a members' club, 1563 EEVENUE— 2'aa;es aiid Duties. 1564 the property of which was vested in trustees, and which had been established less than thirty- years, from the duty imposed on the annual value, income, or profits of bodies corporate and nnincorporate by s. 11 of the Customs and Inland Eevenue Act, 1885, on the ground that the pro- perty of the club was " property acquired by or with funds voluntarily contributed" within thirty years preceding, within the meaning of the 6th exemption in that section.' By the rules of the club every member on admission paid an entrance fee and the annual subscription for the current year, and, until payment, was not ad- mitted to any of the benefits or privileges of the club, and payment was considered as a declai'a- tiou of submission to the rules ; an annual subscription was payable on January 1st in each year, and if it was not paid on or before March 1st, the member's name was erased from the list of members, and a member intending to withdraw from the club had to give notice on or before January 1st, or otherwise was liable to pay his subscription for the current year : — Held, that, as the entrance fees and subscriptions were paid by members in consideration of the right to enjoy the benefits and privileges of the club, they were not " funds voluntarily contributed " to the Ciub, and therefore duty was payable on property acquired with money so paid. i\>!(; rjnwenity Clwb, In re, 18 Q. B. D. 720 ; .56 L. J., Q. B. 462 ; 56 L. T. 909 ; 3J W. R. 774— D. Charitable Institution — Funds " Legally ap- propriated and applied for any Charitable Purpose " — Funds " voluntarily contributed mthin Thirty Years" — "Property acquired within Thirty Years where Legacy Duty paid."] — By s. 11 of the Customs and Inland Eeveuue Act, 1885, a duty of 5 per cent, is imposed upon the annual value, income, or profits of all pro- perty real and personal belonging to or vested in any body corporate or nnincorporate during the year of assessment after deducting the costs and expenses of the management of such property, subject to the exemption from duty in sub-ss. 3, 6, and 7 respectively contained, in respect of " property or the income or profits of property legally appropriated and applied for any chari- table purpose " (sub-s. 3), " property acquired by or with funds voluntarily contributed to any body corporate or unincoi'porate within a period of thirty years immediately preceding " (sub-s. 6), and " property acquired by any body corporate or nnincorporate within the like period where legacy or succession duty has been paid upon the acquisition thereof " (sub-s. 7). The Linen and Woollen Drapers' Institution was founded in 1832, with the object of making provision for decayed members of the said trades, their widows and children. Rules for the government of the institution were framed, by which any person of three years' standing in any of the said trades, residing within twelve miles of the General Post Office, may, on payment of the life or annual subscription, be elected a member. Medical advice and medicine are also provided free of charge to members or their families ; all relief being confined to members, and no member being entitled as of right to assistance, the board of directors having absolute discretion in every case to grant or refuse the same, and in no case can a member receive assistance unless in necessitous circumstances. The property of the institution consists of the accumulated subscrip- tions of members, and of sums contributed as donations by benevolent persons other than members ; but no precise or accurate calcula- tion had been made, showing how much of such invested funds was derived from members' sub- scriptions, and how much from voluntary con- tributions within the thirty years immediately preceding : — Held, first, that the institution was not a charitable institution, but was in the nature of a mutual benefit society, and therefore that the portion of the funds derived from such subscriptions was not exempt from duty under sub-s. 3 ; and, secondly, that the other portions of the funds, derived from voluntary contribu- tions within the specified period of thirty years, and from property acquired within the same period on which legacy duty had been paid were, if the amounts could be ascertained, exempt from duty under sub-ss. 6 and 7. Linen and Woollen Drapers' Institution, In re, 68 L. T. 9+9— D. 2. PEOPERTT TAX. Landlord's Property Tax — Allowances — "Public School" — Charitable Institution.] — By s. 61, rule 6, of 5 & 6 Vict. c. 35, allowances in respect of property tax, levied under Schedule A. of the Income Tax Acts, are to be made by the commis- sioners for the duties charged " on any hospital, public school, or almshouse, in respect of the public buildings, offices, and premises " belong- ing thereto, if occupied under certain specified conditions : — Held, that a school founded and carried on by the corporation of London under the provisions of an Act of Parliament, not for purposes of profit but for the benefit of a large portion of the public, and maintained partly by a charitable endowment, was a " public school " ■within the meaning of rule 6, notwithstanding the fact that the school was partly maintained by fees charged for instruction. BlaJte v. London {Mayor), 19 Q. B. D. 79 ; 56 L. J., Q. B. 424 ; 36 W. R. 791— C. A. Affirming 51 J. P. 71— D. Self-supporting Institution for Insane.] —By 5 & 6 Vict. c. 35, s. 61, rule 6, allow- ances in respect of property tax levied under Schedule A. of the Income Tax Acts are to be made by the commissioners for the duties charged " on any hospital, public school, or almshouse in respect of the public buildings . . . and for the repairs of such hospital, public school, or almshouse . . . and of the gardens, walks, and grounds for the sustenance or recreation of the hospitallers, scholars, and almsmen, repaired and maintained by the funds of such hospital, school, or almshouse. . . . Or on the rents and profits of lands," &c., "belonging to any hospital, public school, or almshouse, or vested in trustees for charitable purposes, so far as the same are applied to charitable purposes." By 48 Geo. 3, c. 55, Sched. B., Exemptions, Case 4 : " Any hospital, charity school, or house provided for the reception or relief of poor persons" is exempt from the inhabited house duty. An institution for the reception of insane persons was founded by charitable donations, but un- endowed. It was vested in trustees and managed gratuitously by a committee, and supported wholly out of payments made by the patients, of whom some paid more, some less than the cost of their maintenance, and a few were main- tained gratuitously. After paying expenses there 1565 EEVENUE— Taajes and Duties. 1566 was an annual surplus of profite which was expended in enlarging and improving the insti- tution : — Held, that the institution being wholly self-supporting was not exempt as an " hospital " within the meaning of either 5 & 6 Vict. c. 35, s. 61, rule 6, or 48 Geo. 3, c. 55, Sched. B., Case 4, which must be restricted to hospitals maintained wholly or in part by charity. Ifeed- ham V. Sowers, 21 Q. B. D. 436 ; 59 L. T. 404 ; 37W. R. 125— D. 3. INHABITED HOUSE DUTY. Exemptions — " Hospital " — Self-supporting Asylum for Insane.] — See Jfeedham v. Bowers, supra. Part of Infirmary.] — Where a house was situate within the precincts of an infirmary, wherein the medical superintendent is required to reside by minute of the managers and by the exigencies of the hospital, but not by statute : — Held, that the house was a necessary part of the infirmary, and therefore exempt under Case 4, Sched. B. of 48 Geo. 3, c. 55. Wilson v. Fasson, 48 J. P. 361— Ex. Scotland. Occupation by Caretaker.] — A female caretaker resided on premises, and it was a condition of her employment that her son, who was a clerk, employed elsewhere, should sleep on the premises for their better protection : — Held, that the premises were not exempt from inhabited house duty under 41 Vict. c. 15, s. 13, sub-s. 2. Weguelin v. Wyatt, 14 Q. B. D. 838 ; 54 L. J., Q. B. 308 ; 52 L. T. 807 ; 33 W. K. 566 ; 49 J. P. 486— D. Tenements — Internal Communication.] — A house was occupied on the ground floor as a bank (by the owners) and as stamp and tax ofBces, on the first fioor as writmg chambers. There was iutemal communication throughout these two floors. The second floor was enclosed by a door leading to the staircase connecting the first and second floors, and was occupied as a residence by the bank accountant : — Held, that the whole premises were liable. Clerk v. British Linen Company, 49 J. P. 825 — Ex. Scotland. Two houses with internal communication were let to various occupiers, and used partly as offices and partly as a, residence. The street door of one house opened into a vestibule, from which two doors led into the offices ; and another door opened into the lobby of the residential portion, and afforded the only means of entrance into the residence : — Held, that the house fell within s. 13, sub-s. 1 of 41 Vict. c. 15. Corhe v. Brims, 48 J. P. 376— Ex. Scotland. A building was divided into two self-contained tenements, one of which was occupied as offices by a firm whose individual partners owned the building, whilst the other was let to one of the partners, who occupied it as a residence : — Held, that inhabited house duty was chargeable only upon the value of the dwelling-house. Nisbet v. jWIimes, 48 J. P. 776— Ex. Scotland. A house was divided into two tenements, which were let to the same tenants under one lease, in which the tenements were separately described : — Held, that s. 13, sub-s. 1, of 41 Vict. c. 15, applied. Smiles v. Croohe, 50 J. P. 696 — Ex. Scotland. 4. INCOME TAX. a. Property and Persons Liable. Assize' Courts — Police Station.] — The justices of a county, in the due exercise of statutory powers, erected assize courts, with the usual rooms and offices, and a county police-station, with the usual offices and accommodation for constables living there and for prisoners. The land on which they were built was conveyed, under 21 & 22 Vict. c. 92, to the clerk of the peace, to hold to him and his successors for ever upon trust, for the construction of a police station, and otherwise for such uses as the county justices should from time to time order. The buildings formed one block, and were used for the administration of justice and for police pur- poses. Parts of the buildings were also used for holding county and committee meetings, and various other occasional purposes, but no rent or profit was received or made in respect of the buildings or any part of them : — Held, that in- come tax was not payable in respect of the buildings under scheds. A. or B. of 5 & 6 Vict, c. 35, and 16 & 17 Vict. c. 34. Coomber v. Berks JJ., 9 App. Cas. 61 ; 53 L. J., Q. B. 239 ; 50 L. T. 405 ; 32 W. E. 525 ; 48 J. P. 421— H. L. (E.). County Lunatic Asylum — Uedical Officers' Apartments.] — The justices of a county are properly assessed, under schedule A of the Income Tax Acts, in respect of such parts of a county lunatic asylum as are occupied as apart- ments by the medical superintendent, medical officers, and steward, and in respect of a separate house occupied by the chaplain of such asylum. Bray v. Lancasldre JJ., 57 L. J., M. 0. 57 ; 59 L. T. 438 ; 52 J. P. 550— D. Affirmed 22 Q. B. D. 484 ; 58 L. J,, M. C. 54 ; 37 W. R. 392 ; 53 J. P. 499— C. A. Hospital — Payments " applied to Charitable Purposes only."] — The managing committee of an hospital, founded by voluntary contribution for the care and treatment of insane persons, made large yearly profits by receiving wealthy patients, who were charged sums greatly exceed- ing the actual cost of their maintenance and treatment. The committee applied a portion of those profits in aid of the maintenance and treat- ment of poorer patients, who were themselves unable to pay the actual cost thereof, and the remainder in executing works which were pressed upon the committee by the Commis- sioners in Lunacy, and were deemed necessary to bring the hospital into a proper state of efficiency : — Held, that the profits were not, by reason of such application of them to the pur- poses of the hospital, payments "■ applied to charitable purposes only " within the meaning of s. 105 of 5 & 6 Viot. c. 35, so as to exempt the institution from payment of income tax under Sched. D. St. Andrew's Hospital v. Shearsmitn, 19 Q. B. D. 624 ; 57 L. T. 413 ; 35 W. R. 811— D. Vocation — Betting.] — Persons receiving profits from betting, systematically carried on by them throughout the year, are chargeable with income tax on such profits in respect of a " vocation " under 5 & 6 Vict. c. 35 (the Income 1567 EEVENUE— raa;es and Duties. 156a Tax Act) Sohed. D. Partridge v. Mallandaine, 18 Q. B. D. 276 ; 56 L. J., Q. B. 251 ; 56 L. T. 203 ; 35 W. R. 276—1). Corporation— Surplus Profits — Profits appro- priated by Statute.] — A corporation was consti- tuted for the management of the Mersey Docks estate by an act which provided that the moneys to be received by them from their dock dues and other sources of revenue should be applied in payment of expenses, interest upon debts, con- struction of works, and management of the estate ; and that the surplus should be applied to a sinking fund for the extinguishment of the principal of the debts ; and that after such extinguishment the rates should be reduced ; and that, except as aforesaid, the moneys should not be applied for any other purpose whatsoever ; and that nothing should affect their Hability to parochial or local rates : — Held, that under the Income Tax Acts the corporation was liable to income tax ■ in respect of the surplus, though applicable to the above-named purposes only. Mersey Doehs v. Lucas, 8 App. Cas. 891 ; 53 L. J., Q. B. 4 ; 49 L. T. 781 ; 32 W. E. 34 ; 48 J. P. 212— H. L. (E.). Burial Board — Application of Surplus Income in aid of Poor-rate — "Profit."] — A burial board was constituted under 15 & 16 Vict. c. 85, and in pursuance of the act a burial- ground was provided with money charged upon the poor-rate of the parish, and the surplus over expenditure of the income derived from the fees charged by the board was regularly applied in aid of the poor-rate : — Held, that the board were liable to be assessed to the income tax in respect of such surplus, inasmuch as the provision re- quiring it to be applied in aid of the poor-rate did not prevent it from being a " profit " within 5 & 6 Vict. c. 35, s. 60. Paddington Burial Soard v. Inland Revenue Commissioners, 13 Q. B. D. 9 ; 53 L. J., Q. B. 224 ; 50 L. T. 211 ; 32 W. R. 551 ; 48 J. P. 311— D. Surplus Revenue — Water Supply.] — The Glasgow Corporation Water Commissioners are liable to assessment in respect of surplus revenue derived from supplying water beyond the area of compulsory supply, and from the sale of water for purposes of trade. Glasgow Corporation v. Miller, 50 J. P. 503 — Ex., Scotland. By the Dublin Corporation Waterworks Act, 1861 (24 & 25 Vict. c. clxxii.), the corporation were empowered to construct waterworks for the supply of water to the borough of Dublin and certain extra-municipal districts, and were authorised to borrow money for the purposes of the act on the rates leviable under it ; and em- powered to levy certain rates on the owners and occupiers of property within the borough. They were also authorised to contract with owners or occupiers of property in the extra-municipal districts for the supply of water for domestic use, and to charge rate or rent for such supply, to be called a " contract water rate." By the Dublin Waterworks Act, 1870 (33 & 34 Vict. c. 96), it was provided that the income derived from the extra-municipal districts should form, with the city rates, a consolidated fund, avail- able for the payment of principal and interest of loans, and applicable to all the purposes of the act : — Held, that the excess of receipts over expenditure in respect of extra municipal dis- tricts was liable to income tax. Builin Cor- poration V. MAdam, 20 L. R., Ir. 497 — Ex. D, Water Supply to Barracks.] — ^A water- works company is liable for profits derived from selling water by meter to barracks within thfr area of compulsoiy supply. Allan v. Hamilton Waterworhs Commissioners, 51 J. P. 727 — Ex., Scotland. Insurance Company — "Profits and Gains" — Bonuses to Participating Policy-holders.] — A life insurance company issued " participating policies," according to the terms of which any surplus which existed at the end of each quin- quennial period in the hands of the company, after payment of policies falling due during such period, and provision for outstanding lia- bilities, was dealt with as follows : two-thirds of the surplus went to the policy-holders, who- received payment thereof either by way of bonus or abatement of premiums ; the remaining third of the surplus went to the company, who bore- the whole expenses of the business, the portion remaining after payment of expenses constituting the only profit available for division : — Held (by Lords Blackburn and Fitzgerald, Lord BramweU diss.), that the two-thirds returned to the policy- holders were " annual profits or gains " and. assessable to income tax. Last v. London Asgwr^ ance Corporation, 10 App. Cas. 438 ; 55 L. J., Q. B. 92 ; 53 L. T. 634 ; 34 W. R. 233 ; 50 J. P.. 116- H. L. (B.). Where a. life insurance company carrying^ on business in New York and Great Britain issued participating policies as well as non- participating policies in Great Britain to mem- bers of the company, and remitted the net amount received to New York : — Held, that the premium income derived from participating as well as non-participating policies was a " profit or gain" liable to be assessed to income tax. Last V. London Assurance Corporation (10 App. Cas. 438) followed. Styles v. New York Life Insurance Company, 51 J. P. 487 — D. "Profits and Gains" — ^Interest arising- from Investments made for purpose of carrying on Business.] — The amount of interest arising from investments made by an insurance com- pany for the purpose of carrying on their basi- ness on which income tax had been deducted at its source amounted to more than the profits of the company for the year of assessment, but the company had during the year received inte- rest from investments on which income tax had not been deducted at its source : — Held, that under s. 102 of the Income Tax Act, 1842 (5 & 6- Vict. c. 35), and sched. D. of s. 2 of the Income Tax Act, 1853 (16 & 17 Vict. c. 34), the company were liable to pay income tax on the interest from which income tax had not been deducted at its source. Last v. Lo^idon Assu/ranoe Cor- poration (10 App. Cas. 438) considered. Clerioaly Medical, and General Life Assurance Society V. Carter, 21 Q. B. D. 339 ; 57 L. J., Q. B. 614 i 59 L. T. 827 ; 37 W. R. 124— D. Affirmed 22^ Q. B. D. 444 ; 58 L. J., Q. B. 224 ; 37 W. E- 346 ; 53 J. P. 276— C. A. Person residing in England — Trade carried on Abroad— Profits not remitted to England.]— The 1569 REVENUE— raares and Duties. 1570 respondent, who resided wholly in England, was a partner in a firm carrying on business solely in Melbourne, Australia. Profits were made by the firm, and a portion of the respondent's share thereof was remitted to him in England, and re- turned by him for assessment to the income tax under Schedule . D. The larger portion of his share of the profits of the firm was not remitted to him in England, but was left in Australia. The appellant contended that the respondent was liable in respect of the whole of his share of the profits, whether received by him in Eng- land or not, as being profits or gains arising or accruing to him while residing in the United Kingdom from a trade carried on elsewhere, within the meaning of 16 & 17 Vict. c. 34, s. 2, Sched. D. : — Held (Fry, L. J., dissenting), that the respondent was not liable to income tax in respect of that portion of his profits which did not reach him in England. Colqulioun v. Brooks, 21 Q. B. D. 52 ; 57 L. J., Q. B. 439 ; 59 L. T. 661 ; 36 W. E. 657 ; 52 J. P. 645— C. A. Affirmed in H. L., W. N., 1889, p. 168. Trade exercised within the United Kingdom — Foreigner resident Abroad.] — T. & Co. were a firm of wine merchants residing and carrying on business at Bordeaux, and T., the senior partner of the firm, usually spent about four months at different times in every year in England, seeing, and taking orders for wine from, retail wine merchants and other customers, and living during that time chiefly in London, and when there always at an hotel, and having no other English residence. The appellants em- ployed a firm of London wine merchants as their agents, in whose offices a room, the rent of which was paid by the appellants, was provided for their use, and there they had their own clerk, whose salary was paid by them, and their name was painted up on the premises. The wines ordered were shipped by the appellants from Bordeaux, whence also bills of lading and invoices were forwarded by them, sometimes to the pur- chasers direct and sometimes to the agents, who collected all the accounts, received payment for all the wines ordered, and transacted all the necessary business not transacted by T. in Eng- land. For this the agents were paid, not by salary, but by receiving a commission on all wines sold in England by the appellants or ordered through T., such commission covering all expenses attaching to the appellants' business in England, and including a guarantee of all debts for the appellants' wines sold in England : and they, the agents, had been charged and had paid income tax on the profits made by them by this agency : — Held, that the appellants, though non-resident in this country, " exercised a trade" within the meaning of the 2nd clause of Sched. D. to s. 2 of 16 & 17 Vict. c. 34, and were rightly chargeable to income tax on the annual profits and gains derived by them therefrom, notwith- standing that the agents had been charged and paid income tax on their profits ; and farther, that s. 41 of 5 & 6 Vict. c. 35, was passed in aid and not in derogation of the rights of the Crown in collecting the revenue, and not in any way to alter the incidence of taxation. Ksohler v. Apthorpe, 52 L. T. 814 ; 33 W. E. 548 ; 49 J. P. 372— D. The appellants, a firm of wine merchants at Eheims, employed a London firm to obtain orders for their wine in England. The wine was adver- tised in England, and the London firm issued circulars from time to time with the authority of the appellants detailing the price and terms of sale. The name of the appellants' firm was put up at the business premises of the London &:m and was published in the Loudon Directory with that address. The appellants had no vrine in England, and all orders were forwarded to Eheims, and the wine, invoiced in the appellants' name, was packed and sent direct from thence to the customer at his expense and risk. Pay- ments were either made direct to the appellants' or to the London firm, who remitted the amount to the appellants without carrying it to any current account. Any biU drawn for payment of wine was sent to the London firm to obtain the acceptance and to hold for the appellants. Formal receipts were sent by the appellants to purchasers for all payments, whether made direct or through the Loudon firm. The London firm were paid by a commission on all wine sold, and the appellants alone were interested in the gain or loss on the sales :— Held, that the appellants exercised a trade vrithin the United Kingdom within Sched. D. of 16 & 17 Vict. c. 34, and were assessable to the income tax in respect of the profits arising therefrom. Werle v. Colqulumn, 20 Q. B. D. 753 ; 57 L. J., Q. B. 323 ; 58 L. T. 756 ; 36 W. E. 613 ; 52 J. P. 644— C. A. A foreign firm of wine merchants, whose chief office is in France and none of whom are resident in England, but who have established a resident agent in London through whom wine is sold to, and money in payment for it received from, English customers, are assessable to the income tax under Sched. D. in respect of the annual profits or gains arising from a trade exercised within the United Kingdom. Pommery v. Ap- thorpe, 56 L. J., Q. B. 155 ; 56 L. T. 24 ; 35 W. E. 307— D. b. Assessment and Deductions. Coal Mines — Dead Sent and Koyalties — Agree- ment to repay Boyalties overpaid.] — By an agreement for a lease of coal mines for a term of years from March, 1874, the lessees agreed to pay a dead rent for the mines, and royalties at specified rates per ton on all coal worked ; the dead rent to be recoupable out of royalties during the first sixteen years of .the term — ^the effect being, that the lessor received on account of his share of the profits of the concern not less' than a fixed annual sum ; so that when his share of the royalties did not amount to the fixed sum he received that sum ; but when his share of the royalties exceeded the fixed sum he received that sum only until the lessees had been reimbursed the excess paid to the lessor when his share of the royalties did not amount to the fixed sum. The lessees worked the mines for the first time in October, 1880, having paid the dead rent, less income tax, to the lessor up to that year. Upon an assessment to the income tax, made upon the lessees under Sched. D. for the year 1881-2,_ it appeared that the lessor's share of the royalties for that year had exceeded the dead rent by the sum of 1,477Z. : — Held, that in estimating the profits of the concern for the particular year for the purpose of being assessed under the Income Tax Acts, the lessees were not entitled to deduct the 1,477Z. from their gross profits. Broughton Coal Company v. Kirhpatricli, 14 Q. B. D. 491 ; 3 E 1571 EEVENUE — Taxes- and' Duties. 1572 54 L. J., Q. B. 268 ; 33 W. R. 278 ; i9 J. P. 119— D. Bent — Ereminm for Lease. ] — In order to ascer- tain what are the profits and gains of a trade for the purposes of Sched. D. of the 5 & 6 Vict. c. 35, the annual expenditure^one element of which is the rent^should be deducted from the gross profits and gains. Where a lessee pays a ground- rent of 2501. per annum, having already paid 34,000Z. as a premium for a lease of twenty-two years, he has no right to deduct one twenty- second part of the premium in each year, although the lease sinks in value as every year is cut ofi from it. The right principle is to deduct nothing in the way of outlays of money in the shape of expenditure of capital for the future benefit of the estate, but only what may be called current ex,penditure — ^that is, the average current repairs fpr a period of three years, or one yeaj as the case may be. Oillatt v. Colqulumn, 33 W. E. 25— D. Two Businesses — Set-off.] — A seed-merchant taking a farm and working it in connexion with his seed business, cannot claim any allow- ance from the assessment on his profits as seed- merchant in respect of losses on his farm. Brown y. Watt, 50 J. P. 583— Ex. Scotland. Fart of Bank Premises used as Dwelling-house by Manager.]— By 5 & 6 Vict. i;. 39, s. 100, first rule, first case, the duties under Schedule D. in respect of any tfodie, are to be charged on a sum not less than the full amount of the balance of the profits of the tra4e " without other deduction than is hereinafter allowed ; " and by the first rule applicable to the first and second cases in reference to such duties, no deduction shall be allowed for '*any disr bursements or expenses whatever, not being money wholly and exclusively laid out or ex- pended for the purposes of such trade," &c., " nor for the rent or value of any dwelling-house, &c., except such part thereof as may be used for the purposes of such trade or concern not exceeding the proportion of the said rent or value herein- after mentioned." The respondents, a banking company, carried on their business in buildings which contained accommodation occupied as a dwellingrhoHse by the manager or resident agent :—Held,_that the respondents were entitled to deduct froia their profila before returning them for assessment under Schedule D. the annual value of the whole bank premises, including the part occupied by the manager. Mussell v. Tovm and County Bank, 13 App. Cas. 418 ; 58 L. J., P. C. 8 ; 59 L. T. 481 ; 53 J. P. 244— H. L. (Sc.) •■Annual Talne" — Tithe Commutation Sent- charge — ^Ezpenses of Collection.] — In estimating the " annual value " of tithe commutation rent- charge for the purpose of charging the owner thereof with property tax under 16 & 17 Vict, c. 34, s. 32, the amount necessarily expended by him in collection of the tithe rent-chai^e must be deducted. Stevens v. Bishop, 20 Q. B. D. 442 ; 57 L. J., Q. B. 283 ; 58 L. T. 669 ; 36 W. B. 421 ; 52 J. P. 548— C. A. Cost of Embankment to protect Lands against Encroachment of Tidal Eiver.] — By the Income Tax Act, 1853 (16 & 17 Vict. c. 34), s. 37, in charging the duty under Sched. A. in respect of lands, a deduction is to be made for the amount expended by the owner on an average of the twenty-one preceding years in the making or repairing of sea-walls or other em- bankments "necessary for the preservation or protection of such lands against the encroach- ment or overflowing of the sea or any tidal river." The appellant was assessed in the in- come tax under Sched. A. in respect of the annual value of certain lands. These lands had, prior to 1880, been salt marshes adjoining a tidal river, which were liable to be flooded at every tide, and had a small yearly value as pasturage. The appellant began in 1880 to construct an embankment for the purpose of excluding the water from these lands, which was complete in 1885, and the lands were, by the construction of such embankment, converted into valuable in- closed lands, of much greater value than in their previous state as salt marshes : — Held, that the appellant was not entitled to any deductioa under s. 37, on the ground that the embankment constructed by him was not " necessary for the preservation or protection of such lands against the encroachment or overflowing of the sea or any tidal river," within the meaning of the sec- tion, inasmuch as the section did not apply to embankments made for the improvement of the land by altering its condition, but only to em- bankments made for its, protection or preserva- tion in its existing state. Hesketh v. Bray, 21 Q. B. D. 444 ; 57 L. J.. Q. B, 633 ; 37 W. B. 22:; 53 J. P. 133^0. A. Affirming 58 L. T. 313— D. c. Repayment of Amount overpaid. Time within which Overpayment must be proved — Certificates — Jurisdiction of Commis- sioners.]- By 5 & 6 Vict. c. 35, s. 133, "if within or at the end of the year" of assess- ment any person charged with income tax under Sched. D. " shall find and shall prove to the satisfaction of the commissioners by whom the assessment was made that his profits during such year for which the computation was made fell short of the sum so computed," &c., it shall be lawful for the said commis- sioners to cause the assessment to be amended as the case shall require, and, in case the sum assessed shall have been paidi to certify under their hands to the commissioners for special pur- poses the amount of the sum overpaid upon such first assessment, and, thereupon the last-men- tioned commissioners shall issue an order for the repayment of such sum as shall have been so overpaid, &c. An English company, working mines abroad, made, in March, 1887, an applica- tion under the above section for certificates in respect of overpayments of income tax assessed on profits for the years ending respectively April 5, 1884, and April 5, 1885, and the com- missioners by whom the assessments were mside having inquired into the case, gave them certifi- cates under the section. The commissioners for special purposes refused to issu^ orders for re- payment on such certificates, on the ground that they were made without jurisdiction, the com- pany not having found and proved " within or at the end of the year," as required by the sec- tion, that their profits in the respective years fell short of the sum eompujted.: — Held, that, the 1573 REVENUE— raa;es and Duties. 1574 certificates given were valid ; and that manda- mus lay to compel the commissioners for special purposes to issue orders for repayment of the amounts certified to be overpaid. The expres- sion " at the end of the year " in the above sec- tion does not mean at any time after the end of the year, or, on the other band, within any limit of time generally applicable, but as soon after the end of the year as, having regard to the cir- cumstances of the particular case, is practicable by the use of due exertions. JReg. v. Income Taso Commissioiien, 21 Q. B. D. 313 ; 57 L. J., Q. B. D. 513 ; 59 L. T. 455 ; 36 W. S. 776 ; 58 J. P. 84— C. A. The commissioners by whom the assessment was made are given by the section jurisdiction finally to determine whether the discovery and proof cf the profits having fallen short of the sum computed has been made within the period specified in the section as above interpreted. lb., per Lord Esher, M.K. The oommissionera by whom the assessment was made having granted the certificate under the section, the onus of showing that such dis- covery and proof were not made within the period above mentioned, and. that the certificate was therefore invalid, rested on the commis- sioners for special purposes, and was not satisfied by' the mere fact of the application for. the cer- tificate not having been made before the date when it was made in the presents case. Ji>, per Lindley, L.J. How obtained — Petition of Eight. ]^— -A land, company paid debenture interest in excess of the assessments under Schedule A., deducted iocome tax from the interest, and returned the wholes amount deducted for assessment under schedule D. : — Held, that a petition of right did not lie to obtain repayment of the sum paid under Schedule D. Holhorn Viadnot Land Company V. Reg., 52 J. P., 341— Stephen, J. 5. SUCCESSION DUTY. Karriage Settlement — Predecessor — Settlor — Successor.] — An indenture of marriage settle- ment recited that the father of the intended husband agreed to advance and give to his son the sum of 6000Z., which was to be repaid in the event of the marriage not taking place. It was further recited that it was agreed between all the parties to the deed that certain persons (as trustees) should stand possessed of the sum upon trust for the father until the intended marriage should be solemnised ; and if not solemnised before a certain day therein named to transfer the same to the father, and from and after the solemnisation of the marriage upon trust to pay the income to the husband for life, and from and after his decease to pay the income to the wife, should she survive the husband, with the usual trusts over for her children. The husband having died and the widow having become entitled ta the income of the said, sum, the com- missioners claimed payment of succession duty under 16 & 17 Vict. c. 51, as a succession derived feom the father-in-law as the predecessor : — Held, that the father-in-law, and not the husband, was the "predecessor" or settlor, and that suc- cession duty was therefore payabls. Attorneif- General v. MmU, 56 L. T. 611— D. Power of Appointment — Acceleration of Succession by Extinction of prior Interests. ]t— By s. 15 of the Succession Duty Act, 1853 (16 & 17 Vict. c. 51), " where the title to any sucoesMon shall be accelerated by the surrender or extinc- tion of any prior interests, then the duty thereon shall be payable at the same time and in the same manner as such duty would have been pay- able if no such acceleration had taken place." By a marriage settlement the trust funds were settled upon trust to pay the income to the husband for life, and upon his death to the wife for life if she should survive, with remainder to the children of the marriage as the husband and wife jointly, or the survivor of them, should appoint, and in default of such appointment for the children who should attain the age of twenty- one, or die leaving issue or marry, in equal por- tions. It was also provided that it should be lawful for the trustees during the joint lives of the husband and wife, or the life of the survivor, with their, his, or her consent in writing, and after the decease of both, at the discretion of the trustees, to raise and apply, or dispose of, aU or any part of the then expectant part or share of any such child or issue whose share should not then be payable, for or towards the preferment, advancement or benefit of such child or issue. During the lives of the tenants for life portions of the trust funds were appointed and paid over to the children by the trustees under the power in the settlement : — Held, on the death of the surviving tenant for life, liiat as to the appointed . part of the trust fund, there had been an accelera- tion of the title to the succession " by the ex- itinction of prior interests" within 16 & 17 Vict. 0. 51, s. 15, and that such part was, equally with the unappointed part, subject to succession duty. Sitwell, Ex parte, Brury Lowe's Marriage Settlement, In re, 21 Q. B. D. 466 ; 59 L. T. 539 ; 37 W. R. 238— D. Title under Will or by Purchase — Predecessor.] — By the will of X. ecclesiastical leaseholds for lives, of which Y.'s was the last, were settled upon trusts for Y. for life and over. A. having acquired the life interest of Y., bought the rever- sion in the leaseholds from the Ecclesiastical Commissioners, and had been held to have pur- chased as trustee for the persons entitled under the will of X. Part of the land was represented by a sum paid into court as compensation by a public body which had taken it under statutory powers. After the death of Y. the .equitable interest under the will of X. had become vested absolutely in B., who, after satisfying A.'s lien for purchase money, was entitled (inter alia)i to the fund in court : — Held, that. B.'s title was, for purposes of duty, a title acquired under the will and not by purchase, and that succession duty was payable as on the death of Y. as pre- decessor. Pryer v. Morland (3 Ch. D. 675) dis- tinguished, lie Reehherg v. Bectow, 38 Ch. D. 192 ; 67 L. J., Ch. 1090 ; 59 L. T. 56 ; 36 W. R. 682— Chitty, J. " Disposition of Property."]— By deed making provision for an endowment the donor cove- nanted that he or his executors or administrators after his death would transfer certain bank stock and certain shares into the names of trustees, and by another deed of the same date he declared that the trustees should stand possessed of the stock and shares upon trust for certain charit- 3 £ 2 1575 HEYE'N'U'E— Taxes and Duties. 1576 able purposes. By a subsequent deed he cove- nanted that he, or his executors or administrators after his death, would transfer a further amount of bank stock into the names of the trustees, and declared that they should stand possessed of it on the same trusts. After the death of the donor, his executors transferred the stock and shares into the names of the trustees : — ^Held, that the deeds showed a " disposition of property " within s. 2 of the Succession Duty Act, 1853 (16 & 17 Vict. c. 51), and that the stock and shares so transferred were chargeable with succession duty. Higgins, In re (31 Ch. D, 142), discussed. Attorney-General v. Montefiore, 21 Q. B. D. 461 ; 59 L. T. 534 ; 37 W. E. 237— D. Incumbrances created or incurred by Suc- cessor — Sinking Fund.] — A. devised certain landed estates to trustees for =<■ term of years, and subject thereto upon divers limitations, of which the following alone took effect, viz.: to B. for Me, remainder to C. for life, remainder to D. in tail. The trusts of the term were, out of the rents and profits, to keep down the interest on the debts, charges, and incumbrances affecting the said estates and to raise out of the rents and profits 3,000Z. yearly, to be applied as and when a sufficient fund should have been thereby accumulated in the discharge of the principal moneys due in respect of the said debts, charges, and incumbrances,' and of such portion of the testator's simple contract debts as were by his wiU directed to be paid out of his real estate, in case his personal estate should be insufficient. Upon A.'s death in 1841, B. went into possession of the estates, as tenant for life, and by a decree made in a Chancery suit instituted by the trus- tees of the will against B. and others, B. was directed to invest the surplus rents, after pay- ment of interest and other outgoings, in 3J per cent, stock (not exceeding 3,000Z. yearly), and transfer the same from time to time to the credit of the cause. B. died in 1855, and a similar de- cretal order was made as to C, the next tenant for life, in a supplemental suit, to which C. and D., the next remaindermen in tail, were parties. Several investments and transfers were made pursuant to the said orders, and the sinking fund so formed was accumulated in accordance with the directions in A.'s will up to 1863, when C. and D. barred the entail, and limited the lands to such uses as they should jointly appoint ; and C. and D. afterwards raised, upon mortgage of the said lands, a sum of 40,000^., which, with the exception of 4,500^., part thereof, which was transferred to the credit of the Chancery cause in respect of the sinking fund, was paid to C, to recoup him for payments made for the benefit of the estates, including the rebuilding of the mansion-house and other permanent improve- ments, adding to their letting value ; and the lands were re-settled to the use of C. for life, remainder to D. for life, with divers remainders over, subject to a trust term to raise 25,000Z., when required by C. and D. and to apply the same as they should direct. C. thenceforward ceased to keep up the sinking fund, until 1877, when the ari'ears thereof amounted to 42,000Z., and an agreement was made between C. and D. provid- ing, amongst other things, that the 25,000Z. so charged by the resettlement should be released to the extent of 20,000i., such release to be taken in discharge of C.'s liability in respect of the sinking fund up to 20th January, 1878, that certain sums then standing to the credit of the fund should be forthwith applied in discharge of incumbrances affecting the inherit- ance, and the sinking fund should be thence- forward regularly kept up by C. This_ agree- ment was sanctioned by the court, subject to the addition of certain further provisions, and was carried out by deed. C. continued to keep up the sinking fund till his death in 1883, when D. became entitled to the estates. In assessing the succession duty payable by D. the Commissioners of Inland Eevenue disallowed from the list of incumbrances, which D. claimed to deduct, 45,0002., on the ground that incumbrances to this extent would have been paid off but for the suspension of the sinking fund from 1863 to 1878. Upon petition by D. :— Held, that the incumbrances represented by this sum were not created or incurred by D., within the 34th section of the Succession Duty Act, and that he was accordingly entitled to the deduction claimed. O'Neill {Lord\ In re, 20 L. B., Ir. 73 —Ex. D. Covenant by Settlor to pay Sum daring Life or after Beatb, "free from all Seductions what- soever."] — A covenant by A, to pay to trustees of a settlement within twelve months after his death the sum of 10,OOOZ. free from all deduc- tions whatsoever, is satisfied by the payment by his executors of a sum of that precise amount, without any provision being made for the dis- charge of succession duty. Siggins, In re, Bay V. Turnell, 31 Ch. D. 142 ; 55 L. J., Ch. 235 ; 54 L. T. 199; 34W. E. 81— C.A. Such duty, being by s. 42 of the Succession Daty Act chargeable on the interest of the successor, is payable by the trustees of the settlement, and not by the executors of the covenantor. lb. 6. PROBATE DUTY. Bealty forming part of Partnership Assets — Conversion.] — The shares of partners in realty forming part of the partnership property must be regarded as personal estate in the absence of any binding agreement between the partners to the contrary ; and probate duty is payable on a deceased partner's share in such realty irrespective of the question whether or not there is in the event any actual conversion into per- sonalty. Custanee v. Bradshaw (4 Hare, 315) discussed. Attorney- Gejieral v. IIuibiu;i:,lS Q.B. D. 275 ; 53 L. J., Q. B. 146 ; 50 L. T. 374^ C.A. Freeholds— Conversion.] — Freehold property which is by the doctrine of equitable conversion to be considered as personalty, is chargeable with probate duty. 6hmn, In goods of, 9 P. D. 242 ; 53 L. J., P. 107 ; 33 W. E. 169 ; 49 J. P. 72— Hannen, P. Settlement — Covenant to bequeath by Will "the Residue" of Settlor's Estate to Trustees.] — By indenture of settlement, executed upon his marriage. A., in accordance with an agree- ment in that behalf recited in the settlement, covenanted that he would, out of his real and personal estate, by his will bequeath to the trustees of the settlement the sum of 20,0002. 1577 REVENUE— Tfiuces and Duties. 1578 with interest at i per cent, from the date of his death, to be held upon certain trusts therein de- clared, and would also (subject to the payment of the sum of 20,0002. and interest, and of his funeral and testamentary expenses and debts) by his will effectually devise and bequeath or appoint to the trustees the whole of the residue of the real and personal estate of or to which he should be seised or possessed, or entitled at his death, to be held upon the trusts in the set- tlement declared. A., by a codicil to his will, bequeathed to the trustees of his settlement the sum of 20,000^., to be held by them upon the trusts of the settlement, and he left and be- queathed to them the residue of his real and personal property, upon the trusts in the settle- ment declared as to such residue : — Held, that the amount of the residue of A.'s estate did not constitute a debt due by him at his death under ii Vict. 0. 12 ; and further, that the residue formed part of the estate and effects of the tes- tator A., and was, as such, subject to probate duty. Attorney- GeTieral v. Murray, 20 L. B., Ir. 124— C. A. Lands Purchased by Committee of Lunatic from Accumulations of Fersonalty.] — The committees of a lunatic, acting under cer- tain orders of the Lords Justices of Appeal sitting in Lunacy, invested the accumulations of his personal estate in the purchase of land. In pursuance of, and in conformity with, these orders, certain lands (the price for which was paid out of the accumulations of the lunatic's personal estate) were conveyed "unto and to the use of the " committees, " their heirs and assigns, for ever, upon trust for "the lunatic, " his execu- tors, administrators, and assigns ; " and certain powers of leasing and sale were given to the committees ; and the deeds of conveyance con- tained a declaration that the lands thus bought should be considered as part of the personal estate of the lunatic, but they contained in terms no trust for sale : — Held, that the value of the lands thus bought was part of the lunatic's per- sonal estate and effects at his decease, and was liable to probate duty. Attorney- General v. Ailesbury (^Marquis), 12 App. Cas. 672 ; 57 L. J., Q. B. 83; 58 L. T. 192; 36 W. E. 737— H. L. (E.) Incidence of.] — A married woman who died on the 13th of December, 1887, leaving a husband and three children surviving, made a will on the 7th of September, 1887, in exercise of a power of appointment, and appointed executors. The will did not purport to dispose of any other property. At her death she was entitled to separate per- sonal estate not included in the power. Probate of the will was granted under the Amended Pro- bate Rules of April, 1887, in the ordinary form without any exception or limitation : — Held, that the executors were trustees for the husband of the undisposed-of property, and that the pro- bate duty and the costs connected with probate ought to be apportioned rateably between the appointed and the undisposed-of property. Lam- iert, In re, Stanton v. Lambert, 39 Oh. D. 626 ; 57 L. J., Oh. 927 ; 59 L. T. 429— Stirling, J. See also Cwrrie, In re, infra. Beturn of — Handamus to Servants of Crown.] — The rule governing the discretion of the court as to granting a mandamus is, that where there is no specific remedy, a mandamus will be granted that justice may be done. A petition of right is such a remedy, though it depends upon the fiat of the attorney-general being given. ' Reg. v. Inland Revenue Commis- sioners, or Nathan, In re, 12 Q. B. D. 461 ; 53 L. J., Q. B. 229 ; 51 L. T. 46 ; 32 W. E. 543 ; 48 J. P. 452— C. A. The prosecutor applied for a mandamus to the defendants to return excess of probate duty, under 5 & 6 Vict. c. 79, s. 23. Probate duty is paid to the. defendants to and for the use of the crown, and when received it is handed over by them to the crown. The defendants had declined to return the duty paid, on the ground that they were not satisfied of the lawfulness of the claim : — Held, that, assuming the claimant to, be en- titled to some remedy, still a, mandamus ought not to issue, for that there was a specific remedy by petition of right, inasmuch as the money was in the hands of the crown. lb. 7. LEQACY DUTY. Trust not Enforceable.] — A devise to exe- cutors in full confidence, but without imposing any trust or obligation enforceable either at law or in equity or otherwise, that they will apply a sum of money in a particular manner does not create a trust upon which legacy duty is pay- able. Martineau, In re, 48 J. P. 295— D. Bequest when free from.] — A gift of six months' full salary is not a gift free from legacy duty. Marcus, In re, Marcus v. Marcus, 56 L. J., Ch. 830— North, J. E. by will gave all his real and personal estate to trustees upon trust for sale and con- version, and directed them, " out of the pro- ceeds to pay to S., until she shall marry, a clear yearly annuity of 250Z., and after her marriage upon trust to pay to the said S. a clear yearly annuity of 1001. during the remainder of her natural life." ■ The testator proceeded, " And after payment of the said annuity of 2502. or lOOZ., as the case may be, out of the net moneys to arise as aforesaid, upon trust to pay E. a clear yearly sum of 311. is., free of legacy duty." This was a summons taken out by the trustees for the determination of the question whether S.'s annuity was given free of legacy duty : — Held, that the words " clear yearly annuity " properly mean an annuity free from legacy duty, and this meaning could not be cut down by the fact that in another case the testator had added the words "free of legacy duty." Robins, In re, JVelsonv. Robins, 58 L. T. 882— North, J. A testatrix, after having bequeathed various pecuniary legacies, and also legacies of specific chattels, directed that " all the legacies left by my will and codicil be paid free of legacy duty " : — Held that the legacy duty was to be paid out of the estate on all legacies as well pecuniary as specific, the word " paid " not being sufficient under the circumstances to cut down the direc- tion to pecuniary legacies only. Ansley v. Cotton (16 L. J., Ch. 55) discussed and followed. JoJm- Stan, In re, Coelterell v. Earl of JEssew, 26 Ch. D. 538 ; 53 L. J., Ch. 645 ; 62 L. T. 44 ; 32 W. B. 634— Chitty, J. 1579 SALE— 0/ Goods. 1580 Deficient Estate — Abatement of An- nuities.] — When a testator's estate is insufficient (after payment of his debts) to pay in full an- nuities given by his will, the fund must (after payment of costs) be apportioned between the annuitants in the proportion which the sum composed of the arrears of the annuity in each case plus the present value of the future pay- ments bear to each other, and this rule applies in a case in which the annuitants are all living at the time of distribution. A testator gave an annuity of 150Z. to his widow, and an annuity of lOOZ. to a stranger in blood, and he directed that the second annuity should be paid free of legacy duty, which should be paid out of his estate. After payment of his debts, the estate was in- sufficient to pay the annuities in full : — Held, that (after payment of costs) the fund must be apportioned as above between the two annuitants ; that the legacy duty payable on the sum ap- portioned to the second annuitant must be deducted fi-om the whole fund, and the balance then divided in the same proportion between the two annuitants. Heath v. Nugent (29 Beav. 266) followed. WilMns, In re, WilUns v. Eotherham, 27 Ch. D. 703 ; 54 L. J., Ch. 188 ; 33 W. E. 42— Pearson, J. Incidence of.] — Testatrix, in exercise of a general power of appointment, made several ap- pointments of (in each case) "so much and such part of " the said trust in funds as should be of the " clear " value of a specified sum of money in each case, and lastly made an appointment of " all the residue " of the said trust funds. The will disposed of no other property except that subject to the power, and contained no direction for payment of testamentary expenses, probate or legacy duty : — Held, that the testamentary expenses and probate duty, and the legacy duty on the specified portions of the trust funds, must be paid out of that part of the trxist funds which was lastly appointed as residue. Ou/rrie, In re, Sjorltman v. Kiniber- ley iLordT), 57 L. J., Ch. 743 ; 59 L. T. 200 ; 36 W. R. 752— Kay, J. REVERSION. Sale of, Setting aside — Undervalue.] — L Uhconscionable Bakgain. REVISING BARRISTER. ;S«« ELECTION LAW. REVIVOR. See PRACTICE, ante, col. 1402. RIVER. See WATER, rishing in.]— &e Fish axd Fishbet. ROAD. In Metropolis.]— /See Mbthopolis. In Urban or Bnral Districts.]- /See Health. In other Places,]— &e Wat. SAILOR. See SHIPPING. SALE. I. Of Goods. 1. The Contract, 1580. 2. Property in the Goods, 1582. 3. Breach of Contract, 1583. 4. Warranties, 1584. 5. Stoppage in Transitu, 1585. 6. Measure of Damages— See Damagbs. n. Sales by Auction, 1588. III. Of Ships— 5'ee Shipping. IV. Or Land — See Vendor and Puechasbb. V. Of Pood— ,See Health. VI. In Maeket Oveet — See Maekkt. I. OF GOODS. 1. The Conteact. Statute of Frauds — What within.] — A con- tract by an artist with a picture dealer to paint a picture of a given subject at an agreed price, is a contract for the sale of a chattel. Isaacs v. Eardy, 1 C. & E. 287— Mathew, J. Beceipt and Acceptance.] — Where goods of the value of Wl. or upwards are sold by a verbal contract and delivered, and the purchaser retains them, and deals with them in such a way as to prove that he admits the existence of a contract, and admits that the goods were delivered under the contract, this is a sufficient acceptance to satisfy s. 17 of the Statute of Frauds, although the purchaser afterwards rejects the goods on the ground that they are not equal to sample, and if the goods prove equal to sample the purchaser is liable. Page v. 1581 SALE— 0/ Goods. 1582 Morgan, IS Q. B. D. 228 ; 54 L. J., Q. B. 434 ; S3 L. T. 126 ; 33 W. E. 793— C. A. Memorandum in Auctioneer's Book — Segistration— Bill of Sale.] — See Roberts, In re, post, col. 1588. F. 0. B.— Meaning of.] — If the goods dealt with by the contract are specific goods, the words " free on board," according to the general under- standing of merchants, mean that the shipper is to put them on board at his expense on account of the person for whom they are shipped, and I can see no reason why a person should not agree to sell so much out of a bulk cargo on board or ex such a ship upon the terms that if the cargo be lost the loss shall fall upon the purchaser and not upon the seller. Where the terms " free on boaad" are used in such a contract, the same meaning must be given to them as is given to them with regard to goods attributed to the contract. StocTi v. In^lu, 12 Q. B. D. 573 ; 53 L. J., Q. B. 356 ; 51 L. T. 449 ; 5 Asp. M. C. 294 —Per Brett, M. E. Payment in Exchange for BUIe of Lading — Sets of Three — Tender — Bight of Vendee to iqeot.] — Where by the terms of the contract of sale of goods to be shipped, rpaymeut is to be made in exchange for bills of lading of each shipment, the purchaser is bound to pay when a duly-indorsed -bill of lading, efEectual to pass the property in the goods, is tendered to him, although the bin of lading be drawn in triplicate, and all the three are not then tendered or accounted for ; and, if he refuses to accept and pay, he does so at his own risk as to whether it may turn out to be the fact or not that the bill of lading tendered was an effectual one, or whether there was another of the set which had been so dealt with as to defeat the title of the purchaser as indorsee of the one tendered. Sanders v. Maclean, 11 Q. B. D. 327 ; 52 L. J., Q. B. 481 ; 49 L. T. 462 ; 31 W. E. 698 ; 5 Asp. M. C. 160— C. A. Per Brett, M. E. : The seller of such goods should make every reasonable exertion to forward the bills of lading to the purchaser as soon as possible after the shipment, but there is no im- plied condition in such a contract that the bills of lading shall be delivered to the purchaser In time for him to send them forward so as to be at the port Of delivery either 'before the arrival of the vessel with the goods, or before charges are incurred there in respect of them. 7 h. Sending Bill of Exch^ige with Bill of lading — Kon-acceptance — Conversion of Goods — Measnre of 'Damages.] — A shipload of timber having been consigned to the defendants, the consignor sent the bfll of lading aad other shipping documents, and also a bill of exchange, to the plaihtiEEs, in pursuance of the usual course of business between him and them, to cover certain advances which they from time to time made to him. The plain- tiffs placed the Shipping documents and bEl of exchange relating to the cargo of timber in the hands of agents who acted between the plain- tiffs and the defendants. The ageats at the re- quest of the plaintiffs forwarded the documents to the flefendatats, in order to have the bill of exchange accepted by them. Shortly afterwards the defendants informed the ageilts that the cargo was thoroughly out of condition, and that • could not take it in its then state. The agents replied that, unless the defendants re- turned the bill of exchange accepted, they ought to send back the shipping documents. This the defendants declined to do, as they had paid part of the freight, and intended to take posses- sion of the cargo. Later on they stated that they had been compelled to remove the cargo under the rules of the dock company, but that, if the agents would repay them the freight and certain charges, and their profits on a portion of the cargo which they had sold, they would return the documents. The agents replied that the matter must be left in the hands of the plaintiffs, the owners of the cargo. The defendants then returned to the agents the bill of exchange un- accepted, but retained the bill of lading as security against freight and charge's. They offered to yield up the bill of lading on the freight and chaltges being refunded. Thereupon the plaintiffs commenced an action against the de- fendants, asking that they might be ordered to accept and deliver up the bill of exchange ; and that it might be declared that, until such accep- tance amd delivery, the defendants were not entitled to retain the bill of lading. They also asked for an injunction, a receiver, and damages. Owing to delay, caused by the fault of both parties, the action did not come on for hearing until about four years after its commSncetaent : Held, that the defenda»ts, having refused to accept the bill of exchange, were bound to have returned the shipping documents, which "were only at their disposal. on the condition that they should so accept the bill ; and that they wrong- fully took possession of the cargo, and dealt with it as its owners, although they had repudiated the contract, and refused to accept the bill of exchange, availing themselves of the bQl of lading, which they had no right whatever to re- tain or make use of, to get that possession : — Held, therefore, that the plaintiffs were entitled to damages against the defendants ; that,the proper measure of damages was the value of the cargo after making a deduction for freight ; but that none of the other charges claimed by the defen- dants could be allowed, except outgoings in con- nexion with the sale of part of the cargo : — Held also, that defeuda/nts must pay damages, in the nature of interest, for keeping the plain- tiffs out of possession of their goods ; that the ordinary measure of such damages would be 5 per cent, on the value of the cargo from the time the defendants wron^uUy took 'poKesBioli thereof ; but that, having regard to the delay which had occurred in bringing the action on for hearing, attributable no less to the plaintiffs than the defendants, half damages, computed at the rate of 2^ per cent, only, would be awarded. Mew V. Pmjne, 53 L. T. 932 ; 5 Asp. M. C. 515— Kay, J. Personal Liability of Broker.] — See Pein ciPAL AND Agent, II. Bights of Vendor and Administratrix.] — See Evans, In re, ante, col. 777. 2. Peopbkty in the Goods. Apprbpriation — Croods in Bulk.] — Where, after a sale ot 60,000 bricks, part of a bulk of 117,000, the seller had applied all but 62,000 for other purposes, and was still using them, when seized 1583 SALE— 0/ Goods. 1584 in execution : — Held, there was no appropriation of any part of the;i60,000 to the sale. iSaell v. SeigUon, 1 C. & E. 95— Grove, J. Property passing under Bill of lading.] — The mere indorsement and delivery of a bill of lading by way of pledge for a loan does not pass " the property in the goods " to the indorsee, so as to transfer to him all liabilities in respect of the goods within the meaning of the Bills of Lading Act (18 & 19 Vict. e. Ill), s. 1. Sewell v. Bur- dioh, 10 App. Cas. 74 ; 54 L. J., Q. B. 156 ; 52 L. T. 445 : 33 W. K. 461 ; 5 Asp. M. 0. 376— H. L. (E.). Bight of Trustee in Bankruptcy to Articles in Course of Manufacture.] — See ante, col. 133. Bevesting of Property on Conviction — Goods obtained by False Pretences.] — See Makkbt. Materials used in Construction of Bailway — Goods Delivered but not Fixed.]— iSee Banbury and Cheltenham Railway v. Daniel, ante, col. 1542. 3. Breach op Contract. Monthly Deliveries — Non-payment for one Delivery — Bepudiation.] — The respondents bought from the appellant company 5,000 tons of steel of the company's make, to be delivered 1,000 tons monthly, commencing January, 1881, payment within three days after receipt of shipping documents. In January the company delivered part only of that month's instalments, and in the beginning of February made a further delivery. On the 2nd February, shortly before payment for these deliveries became due, a peti- tion was presented to wind up the company. The respondents, bonS, fide, under the erroneous advice of their solicitor that they could not, without leave of the court, safely pay pending the petition, objected to make the payments then due unless the company obtained the sanction of the court, which they asked the company to obtain. On the 10th February the company informed the respondents that they should consider the refusal to pay as a breach of contract, releasing the company from any further obligations. On the 15th February an order was made to wind up the company by the court. A correspondence ensued between the respondents and the liquidator, in which the respondents claimed damages for failure to deliver the January instalment, and a right to deduct those damages from any payments then due ; and said that they always had been and still were ready to accept such deliveries and make such payments as ought to be accepted and made under "the contract, subject to the right of set-off. The liquidator made no further deliveries, and brought an action in the name of the company for the price of the steel delivered. The respondents counter-claimed for damages for breaches of contract for non-delivery: — Held, that, upon the true construction of the contract, payment for a previous delivery was not a condition precedent to the right to claim the next delivery ; that the respondents had not by postponing payment under erroneous advice, acted so as to show an intention to repudiate the contract, or so as to release the company from further performance. Mersey Steel and Iron L. J., Q. B" H. L. (E.), V. Naylor, 9 App. Cas. 434 ; 53 49'7 i 51 L. T. 637 ; 32 W. E. 989— Bight to reject when inferior to Contract — Custom.] — A vendor cannot compel a purchaser to accept goods inferior in quality to that con- tracted for, where no property in the goods has passed or the sale is not Of a specific cargo. No custom exists in the Liverpool corn trade com- pelling the buyer to accept under such circum- stances, and quaere as to the reasonableness of such a custom. Sinidino v. Kitchen, 1 C. & E. 217 — Hawkins, J. 4. Waeeanties. Sale of Horse — Condition for Beturn — Horse disabled — Implied Condition.] — The plaintiff bought a horse of the defendant warranted quiet to ride. One of the conditions of the contract was to the effect that if the buyer contended that the horse did not correspond with the warranty it must be returned on the second day after the sale, and that the non-return within the time limited should be a bar to any claim on account of any breach of warranty. The horse was removed by the plaintiff, and while being ridden fell, and was so injured that it could not safely be returned on the second day after the sale, but the plaintiff gave notice to the defendant on that day that the animal was not according to warranty, and was unfit to travel : — Held, that, under these circumstances, the non-return of the horse within the period stipulated by the condition was no bar to an action for breach of the warranty. Chapman, v. WUhers, 20 Q. B. D. 824 ; 57 L. J.,Q. B. 457 ; 37 W. R. 29— D. Implied— Sale of Chain-Cable untested and un- stamped.] — In every case of a contract for the sale of a chain-cable, whether for use on a British ship or not, there is an implied warranty that it has been properly tested and stamped in accordance with the acts. Sail v. BilUngham, 54 L. T. 387 ; 34 W. E. 122 ; 5 Asp. M. C. 538 — D. Contract to manufacture Goods equal to Sample — Caveat emptor — Latent Defect.] — Cloth-merchants ordered of cloth manufacturers worsted coatings which were to be in quality and weight equal to samples previously furnished by the manufacturers to the merchants. The object of the merchants was, as the manu- facturers knew, to sell the coatings to clothiers or tailors. The coatings supplied corresponded in every particular with the samples, but owing to a certain defect were unmerchantable for purposes for which goods of the same general class had previously been used in the trade. The same defect existed in the samples, but was latent and was not discoverable by due diligence upon such inspection as was ordinary and usual upon sales of cloth of that class : — Held, that upon such , a contract there was an implied warranty that the goods should be fit for use in the manner in which goods of the same quality and general character ordinarily would be used. Mody V. Gregson (4 L. E. Ex. 49) approved. Brvmmond v. Van Ingen, 12 App. Cas. 284 ; 1585 SALE— 0/ Goods. 1586 56 L. J., Q. B. 563 ; 57 L. T. 1 ; 36 W. E. 20— H. L. (E.) Title — Sale of Government Bonds.] — The goTernment of the United States in 1865 issued bonds payable to bearer, redeemable at the pleasure of the government, after 1870, and payable, at aU events, in 1885. When the government wished to redeem any of these bonds, they gave notice to holders by public notification that they would be paid on presen- tation. After such notice, the bonds notified were called " Called Bonds." These bonds are dealt in in England for the purpose of making remittances to America. The course of business is for the seller to supply the buyer with bonds or coupons of railway companies, &c., payable in America at an agreed price, no particular bonds or coupons being specified. It was proved that whenever default was made in payment of the coupons in America, the seller returned the money paid for them, but no evidence was given of any case in which payment of a bond had been refused. A. sold to B. in accordance with the above course of business certain " Called Bonds," which had been originally stolen from American holders, and payment to B. of the bonds was refused by the American govern- ment: — Held, that there was an implied war- ranty of title on the sale by A. to B., and that B. was entitled to recover from A. the price paid. Raphael v. Bnrt, 1 C. & E. 325— Stephen, J. 5. Stoppagb in Transitit. Goods Bonght for Shipment Abroad — Delivery of Goods on board Ship — Termination of Transit.] — Goods having been purchased by merchants in London of manufacturers in Wolverhampton, the purchasers wrote to the vendors asking them to consign the goods " to the ' Darhng Downs,' to Melbourne, loading in the East India Docks." The goods were accordingly delivered by the vendors to carriers to be forwarded to the ship. The vendors being subsequently informed of the purchaser's insolvency gave notice to the carriers to stop the goods, but too late to prevent their shipment on board the " Darling Downs." The ship sailed with the goods on board for Melbourne, but before she arrived the vendors claimed the goods from the shipowners as their property : — Held, that the transit was not at an end till the goods reached Melbourne, and there- fore that the vendors had till then a right to stop them in transitu. Bethell v. Clark, 20 Q. B. D. 615 ; 57 L. J., Q. B. 302 ; 59 L. T. 808 ; 36 W. E. 611— C. A. Affirming 6 Asp. M. C. 194 — D. Goods Bought by Commission Agent in England for Foreign Principal.] — A commission agent in London was employed by merchants at Kings- ton, Jamaica, to buy goods for them in England. He ordered the goods of the manufacturers " for this mark," there being in the margin of the letter which gave the order a mark consisting of two letters, with " Kingston, Jamaica," added. The manufacturers knew from previous dealings that this mark had been used by the Jamaica firm. The goods were to be paid for by six months' bills drawn by the manufacturers on the commission agent and accepted by him. On the 11th of September the commission agent wrote to the manufacturers, telling them to pack the goods and mark them with the mark pre- viously mentioned, and to forward them to specified shipping agents at Southampton, for shipment by a particular ship, " advising them with particulars for clearance." On the 13th September, the manufacturers sent the invoice of the goods to the commission agent, telling him that they had that day forwarded the goods by railway to the shipping agents " with the usual particulars for clearance. " The same day the manufacturers wrote to the shipping agents, sending them the particulars of the goods, and adding, '-which please forward as directed." The particulars described the goods as marked with the letters originally given by the commis- sion agent, and the words " Kingston, Jamaica," and numbered with specified numbers, but the columns for " consignee " and " destination " were left in blank. The cost of the carriage to Southampton was paid by the manufacturers. On the 14th of September the commission agent sent to the shipping agents particulars of the goods, giving the name of the Jamaica firm as consignees, and stating the destination of the goods to be Kingston, Jamaica. The goods were shipped on board the vessel, the bills of lading describing the commission agent as consignor, and the Jamaica firm as consignees. After the ship had sailed, but before her arrival at Jamaica, the commission agent stopped payment, and the manufacturers, who had not been paid for the goods, gave notice to the shipowners to stop them in transitu : — Held, that, as between the com- mission agent and the manufacturers, the transit was at an end when the goods arrived at South- ampton, and that the notice to stop was given too late. Watson, Mx parte (5 Ch. D. 35), dis- tinguished. Miles, Ex parte, Isaacs, In re, 15 Q. B. D. 39 ; 54 L. J., Q. B. 566— C. A. Purchase by Agent in England for Foreign Principal — Delivery on Principal's Vessel — Mate's Eeceipts.] — B. and S., acting as agents in England for a foreign principal, purchased from F. & Co., in England, cement for the New York market ; the cement was ordered to be sent alongside a vessel which B. and S. had pur- chased for their principal, and was shipped on board that vessel ; mate's receipts for the cement were taken by F. & Co. and handed on to B. and S., who exchanged them for bills of lading in which B. and S. were stated to be the shippers, and which made the goods deliverable to the order of B. and S. B. and S. gave all necessary directions as to the destination of the goods and the sailing of the vessel. While the vessel was on its way to New York, B. and S. became bank- rupt, and F. & Co. claimed as unpaid vendors to stop the cement in transitu. F. & Co. knew not only that the vessel belonged to B. and S.'s principal, but also that the cement was bought by B. and S. for that principal : — Held, that P. & Co. were not entitled to stop the cement in transitu. Franois, Ex parte, Brv/rw, In re, 56 L. T. 577 ; 6 Asp. M. C. 138 ; 4 M. B. E. 146— Cave, J. Goods Shipped to Order of Vendee.] — The right of the vendor of goods to stop them in transitu is not lost by the mere fact that by the bill of lading under which they are shipped they are deliverable to the vendee or his assignees. 1687 SALE — Sales by Auction. 1588 Srindley v. Oilgwyn Slate Company, 55 L. J.. Q. B. 67— D. The plaintiffs entered into a contract with the defendants to purchase seyenty tons of slates. At the request of the plaintiffs the defendants chartered a ship and loaded her with the slates for Southampton, taking bills of lading by which the slates were deliverable to the vendees or their assignees. Before the arrival of the ship at Southampton the defendants heard of the insolvency of the plaintiffs, and gave orders to the master to stop the slates in transitu. In an action by the plaintiffs for non-delivery of the slates : — Held, that the transit was not at an end, and that the defendants had a right to stop the delivery of the slates. Rucli v. Hatfield (5 B. & Aid. 632) ; Mosevear China Clay Company, JEx parte (11 Ch. D. 560) followed. lb. Delivery of Bills of Lading — Telegram.] — J., P., & Co., merchants at Pernambuco, having in the course of their business received orders from customers to purchase goods on their account in New York, instructed S. J. & Co., their agents at Liverpool, to purchase the goods and have them shipped to J., P., & Co. S. J. & Co. then instructed E. B. B., the agent at New York of J., P., & Co. and S. J. & Co., to purchase the goods. K. B. B. purchased the goods and shipped them to . Per Lord Blackburn : — The doctrine of revival of adultery as a ground on which a divorce has been granted is to be strongly objected to as varying the status of married persons. On principle, a reconciliation being entered into with full knowledge of the guilt and with free and deliberate intention to forgive it, where that reconciliation is followed by living together as man and wife, the status of the couple ought to be the same and not more precarious than if there was a new marriage. lb. Per Lord Blackburn : — ^Assuming it to be now established English law that any matrimonial offence, though forgiven, may be revived by any other matrimonial offence of which the courts take cognizance, it is very modern law, and not so obviously just and expedient, that this House ought to inier that it either was or ought to have been introduced into the law of Scotland. lb. See Lord Watson's opinion, for the terms of a remission of adultery which would not constitute plena condonatio in the law of Scot- land, lb. Married Woman — Separate Estate — Beceipt of Income by Husband — Presumption of Gift.] — By the law of Scotland, as well as by that of England, a married woman may make an effectual gift of her separate income to her husband ; with this difference, that by Scotch law she has the privilege of revoking the donation, even after her husband's death, and reclaiming the subject of her gift in so far as it had not been consumed. The same circumstances which are in England held to imply donations between husband and wife are sufficient to sustain a similar inference in Scotland. Edward v. Cheyne, 13 App. Cas. 385— H. L. (Sc). A married woman living with her husband in Scotland was entitled to the income of a fund settled for her separate use, which stood in the names of trustees, of whom her husband was one ; and he also acted as factor of the trust. Payments of income were at first lodged in a bank to the credit of the wife's separate account, then to the credit of an account in the names of both husband and wife ; but for many years previous to the husband's death, both before and after he became sole trustee, the income was paid into the husband's private banking account. and mixed with his own funds : — Held, that these circumstances inferred a complete gift | and, in respect it had not been revoked by the wife, that her representatives were not entitled to an account of the husband's intromissions with her separate estate. lb. Ante-nuptial Settlement by Infant — Con- tract, by what Law governed.] — The appellant, a domiciled Irishwoman, being an infant without legal guardian, married in Ireland, before the passing of the Infants' Settlement Act (18 & 19 Vict. c. 43), a domiciled Scotchman. An ante- nuptial settlement was executed. After the death of her husband she commenced the present action in the Scotch courts to set aside the settle- ment. No evidence was given as to the capacity of an infant to execute a binding contract by the law of Ireland : — Held, that, the point being raised in the pleadings, the house must take judicial notice that by the law of Ireland the settlement was not binding on the appellant, without regard to whether any, or what, evidence of the law of Ireland, as a matter of fact, had been given in the court below ; and, further, that the validity of the settlement was not affected by the fact that at the time of its execution both parties contemplated a Scottish domicil during their married life. Cooper, v. Cooper, 13 App. Cas. 88 ; 59 L. T. 1— H. L. (Sc). Post-nuptial Settlement by Husband — Wife's Assent to Life-rent Provision — Jus relictsB.] — A testator, between whom and his wife there was no ante-nuptial contract, by the third purpose of his settlement, directed his trustees to pay over the whole annual income of his estates to his wife for her life ; and by the fourth purpose " after the death of the longest liver of me and my wife to convert into money all my estate and with her consent and full approbation (in token of which she has sub- scribed this deed) to pay " certain legacies. The deed contained no express discharge of the wife's terce and jus rellctae ; and it reserved a power to the testator to alter or revoke. The wife signed the deed without any limitation being attached to her signature in the testing clause. She survived the testator for two months, but was incapable of transacting any business during that period : — Held, that although the wife's consent to the deed could not be carried beyond the fourth purpose, except so far as it necessarily implied approval of the other pur- poses, yet the fourth purpose and the antecedent provision of life-rent in the third purpose were so intimately connected that the wife must be held to have accepted the provision, and there- fore, although the wife had the power to reyoke her consent, her representatives had not, and their claim to her terce and jus relictse was untenable. JEdward v. Cheyne, 13 App. Cas. 373— H. L. (Sc). Lease — Joint Tenants— Covenant to pay Bent — Liability of Executors of deceased Tenant during Sole Tenancy of Survivor.] — A mineral lease for thirty-one years was granted to L. and M., "and the survivor of them, but expressly excluding assigns, and sub-tenants, whether legal or conventional." By the lease L. and M. bound themselves and their respective heirs, executors and successors, all conjunctly and severally renouncing the benefit of discussion, to 3 P 1603 SCOTLAND. 1604 pay the rent. The lease also provided that if L. or M. became bankrupt it should, in the option of the lessor, become void. Shortly after the commencement of the lease L. became bank- rupt, and M. died, but the lessor never exercised his option to determine the lease : — Held, that by the terms of the clause of obligation the lessees were conjunctly and severally liable for rent irrespective of their interest, and that after M.'s death, his representatives, though they had no interest as tenants, remained liable for rent during the currency of the lease. Bwns v. Bryan or Martin, 12 App. Cas. 184 — H. L. (Sc). Xarket — Power of Corporation to let Covered Fortion of Market for other Purposes.] — By 37 & 38 Vict. c. Ixxxv., B. 8, the corporation of Edinburgh (who were grantees of a market in Edinburgh) " may cover in a suitable and con- venient manner the fruit and vegetable market- place, and improve and better adapt the same for the purposes of such market, and for the accommodation of parties using the same, and of the public, &c. Provided always that the ground floor only of such market-place shall be used for such fruit and vegetable market, and that all vacant portions of such market-place, whether on the ground floor or above the same, and all vacant and unlet stands, stalls, or shops in or on such market-place, may be let or used by the corporation for such purposes and for such rents or sales as to them shall seem proper : — Held, that the corporation were not entitled to exclude members of the public from the covered portion of the market during market hours and devote the building to other purposes. JUMn- bwrgJi Magistrates v. BlaoMe, 11 App. Cas. 665 — H. L. (Sc). Per Lord Watson : — When a grant of market is not confined to any particular locality, the grantee may from time to time change the site in order to suit his own convenience ; but it is an implied condition of the exclusive privilege that he shall provide a market-place, and that implied condition is satisfied so long as he gives reasonable accommodation to those members of the public who use the market either as buyers or sellers, and the extent of the accommodation which must be afforded in each case must vary with the circumstances. lb. Orders — Enrolment of, in England.] — See Dundee Suburban Railway, In re, ante, col. 1491. Parent and Child — Entailed Estates — Legitim — Exclusion of Apparent Heir in ante-nuptial Contract of Marriage.] — Although the rigiht of children may be barred or excluded altogether, either by direct renunciation between their father and them, or by an express exclusion of their right in the ante-nuptial contract of their parents, yet their right cannot be barred by in- ference or implication. By ante-nuptial con- tract of marriage between the settlor, the heir in possession of entailed estates and his intended wife, dated 1851, the settlor, after reciting s. 4 of the Aberdeen Act (5 Geo. 4, c. 87), granted provisions in favour of the children of the mar- riage, other than and excluding the heir who should succeed to the entailed estates ; he also appointed tutors to the children, and, inter alia, gave directions as to the maintenance and edu- cation of the heir as well as the other children, ' which provisions before conceived in favour of the children of the marriage are hereby declared to be in full satisfaction to them of all baijiis' part of gear, legitim, portions natural," &c. :— Held, that the claim of the eldest son and child of the marriage who succeeded to the entailed estates to legitim was not barred by the marriage contract. Kintore ( Countess') v. Kintore {Earl), 11 App. Cas. 294— H. L. (Sc). Acquiescence. ] —A son remained in ignor- ance of his right to legitim for nearly three years after his father's death, and all parties acted as if legitim was not due : — Held, the son's claim to legitim was not barred by acquiescence. /*. Sale of Goods — Delivery — Mercantile law Amendment (Scotland) Act, 1856— Bankruptcy of Vendor. ] — By the law of Scotland the effect of the appropriation and acceptance of a specific chattel by the contracting parties is to perfect the contract of sale, and to give the purchaser a right to demand delivery, but the property in the chattel does not pass to him until he has. obtained delivery under the contract ; and s. 1 of the Mercantile LawAmendment (Scotland) Act, 1856 (19 & 20 Vict. u. 60) imposes no limitation upon the right of the vendor's creditors to attach goods in his custody untU the contract of sale has been so perfected. C. and Son, a firm of engineers, undertook by different contracts to supply and fit up engines in various ships which were being built by the appellants, who were shipbuilders, and advances were made by the appellants as the work progressed. An agree- ment was subsequently entered into between the parties by which it was stipulated that on pay- ment being made on account of any contract " the portions of the subjects thereof, so far as constructed, and all materials laid down " in C. and Son's yard " for the purpose of constructing the same, shall become and be held as the abso- lute property of " the appellants, " subject only to the lien of C. and Son " for the " payment of the price, or any balance thereof that may remain due." At the date of this agreement C. and Son were insolvent to the knowledge of the appellants, and the only considerable contracts they had on hand were the contracts with the appellants, which it was then known would result in a loss. It was important to the appel- lants that the contracts should be completed, and they continued to make advances to C. and Son until the most important contract was completed. After that C. and Son became bankrupt : — Held, that there had been no sale of any specific goods to the appellants within the meaning of s. 1 of the .Mercantile Law Amendment (Scotland) Act, 1856, nor delivery of possession, and that the appellants were not entitled, as against the trustee in 0. and Son's bankruptcy, to take possession of the materials to be used in carrying out their contracts, which were in C. and Son's yard at the date of their bankruptcy. Seatli v. Moore, 11 App. Cas. 350 ; 55 L. J., P. C. 54 ; 54 L. T. 690 ; 5 Asp. M. C. 586— H. L. (Sc). Sea-shore — Crown Property — Bounding Char- ter — "With pertinents" — Prescriptive Title- Beneficial Possession — Acts of Ownership — Drift Sea- ware.] — The pursuer brought an action to establish his title as against the defenders and the Crown to the foreshore of the sea ex adverse land of which he was the proprietor. 1605 SCOTLAND. 1606 He dlaiihecl under a grant of fen made to his a-': lestor in 1804, which described the property granted as land bounded by the sea, but h& did not endeavour to show that the grantor had an express title from the Crown. He, however, endeavoured to prove his title to the foreshore by prescriptive possession following on his own title, and, inter alia, adduced evidence to show that his predecessor in 1827 built a retaining wall upon a portion of the foreshore ; that he and his predfecessors had taken stone and sand from the shore ; and that they and their tenants had exclusively carted away the drift sea- ware. The Crown, on the other hand, adduced evidence to show that stones and sand were taken from the shore to build a harbour, and that the villagers had carried away in creels drift sea- ware : — Held, that, riotwithStiSMdlng the absence of an express title in the Superior, the pursuer had given suffi- cient proof that he and his predecessors had bpen in possession of the foreshore in question for the prescriptive period specified in the Scottish Act of 1617, c. 12, and the Act of 37 & 38 Vict. c. 94, by virtue of their heritable infeftments, and that he had consequently a valid right of property in the solum of the foreshore as against the Crown. Iiord Advocate v. Young, 12 App. Cas. 544 — H. L. (Sc). Security for past and future Advances — Notice of Assignation by Debtor — Further Ad- vances after Notice.] — A disponee who holds property on an ex facie absolute title of owner- ship, but in security Only of advances made and to be made to the disponee, is not entitled to hold the property for repayment of advances made after ^e has ifeceived notice that the dis- poner has, for a valuable consideration, conveyed his reversionary right in the property to another. the principle of Itnphinson v. RoU H. L. C. 514) followed. Union BanTi of Scotland v. National Bank of Scotland, 12 App. Cas. 53 ; 56 L. T. 208— H. L. (Sc.). Superior and Vassal.] — An action of declarator of tinsel of a feu ob non solutum canonem is an irredeemable adjudication of the feu in favour of the superior ; but the sub-feuar can protect himself from eviction by paying the superior's full preferable debt, and when he does so he has a claim of relief prp.rat^ against all the owners of the land on which that debt is charged. It is provided by the Scotch statute 1597, c. 250, that the vassal shall lose the feu of his lands by his failure to pay the feu duty for two years together, in like manner as if an irritant clause to that effect had existed in his feu contract. By feu contract A. disponed in feu farm to B. and C. five acres of building land, with an annual reddendo of 480Z. The contract of feu contained the expressed declaration "that in case at any time two years' feu duty shall be fully resting, owing and unpaid together, then this present feu right, and all that may follow hereon, shall, in the option of the superior, become void and null. B. and C. divided the lands between them, and each granted, inter alia, sub-feus (narrating in the deeds conveying the land the above-mentioned feu contract) of portions of the five acres to D. and B. respec- tively. Upwards of four years' feu duties became due. A. raised an action of declarator of irri- tancy ob non solutum canonem. D. and E. con- tended that the irritancy liiust be confined to the mid-superiorities created by B. and C, and had no effect on the portions of land sub-feued on their tendering the sub-feu duty reserved on each : — Held, that the superior's right was not merely a charge upon the mid- superiorities, but a right to annul the charter of his feuars and all sub-feus made by them, to the effect of resuming the full beneficial pos- session of the lands feued ; and that the circum- stances did not warrant the conclusion that the superior had consented to the sub-infeudation. Samdeman v. Scottish Property Society, 10 App. Cas. 553— H. L. (Sc). Warrandice — Liability of Executor — Disposi- tion with Warrandice Clause — Heir and Dxecntor — Residue.] — Thegrantor, by a disposition mortis causa dated 1853, conveyed his whole heritable and moveable estate to trustees for the purpose (inter alia), failing heirs of his own body, of conveying his estate of M. and his other lands in the county of Lanark to his brother under a strict entail. By codicil dated 1876, and soon after his marriage, the testator disponed to his wife, in the event of her surviving him, the lands of B. and A., directing these lands to be excepted out of the lands directed by the deed of 1853 to be entailed ; and bequeathed to her the whole residue of his estate. By a previous deed he appointed his wife as his sole executrix. The disposition of B. and A. to the wife contained a clause of warrandice in ordinary form under tbe Titles to Land Consolidation Act of 1868 (31 & 32 Vict. c. 101), s. 8, Sched. B., which under s. 8 iitiports an absolute warrandice. In 1882 he gralited a bond and disposition in security for 250,000Z. over the estates of " M.," " B.," and " A." On the grantor's death his widow claimed that no part of the debt of 250,000^. was payable out of B. and A., or out of residue, but that the whole debt was entirely chargeable aigainst " M." : — Held, that the testator had in imposing the obligation of warrandice used words limited in their significance to personal obligation, and thS.t his widow as personal representative and executrix must herself discharge the obligation of vrarrandice. Montrose- (^Dowager Buohess) v. Stuart, 13 App. Cas. 81— H. L. (Sc). Way— Public Eight— Prescription — ^Non-user for long Period.] — According to the law of Scot- land, the constitution of a public right of way does not depetad upon any legal fiction, but upon the fact of user by the public as matter of right, continuously and without interruption for forty years. And the amount of user must be such as might have been reasonably expected if the road in dispute had been an undoubted public highway. Also, the user must be a user of the Whole road as a means of passage from one terminus to the other, and must not be such a user as can be reasonably ascribed either to private servitude rights or to the licence of the proprietor. The continued exclusion of the public from the use of an alleged public road for thirty-seven years will not, per se, destroy a pre-existent right of public way unless it is maintained for the prescriptive period of forty years, but it is strong evidence that no such public right ever existed. Mann v. Brodie, 10 App. Cas. 378-H. L. (So.). 3 F 2 1607 SEA. 1608 SEA. Fishery.]— iSse Fish and Fishbet. Insurance.]— jSse Insueancb (Marine). Sea-wall — Prescriptive Liability to Repair- Extraordinary Storm.] — A. was a frontager in a level on the Essex shore of the Thames under the jurisdiction of comraiesioners of sewers. An ancient sea-wall protected the level against in- cursions of the sea. There was evidence proving a prescriptive liability on the frontagers in the level to maintain and repair the portions of this wall respectively fronting their lands. Part of the wall in front of A.'s land was destroyed by an extraordinary storm and high tide. This part of the wall was previously in good repair and in a proper condition to resist the flow of ordinary tides and the force of ordinary storms : — Held, following Keigliley's ease (10 Kep. 139) and Rex V. Somerset (8 T. R. 312), that in the absence of evidence that the prescriptive liability of the frontagers extended to the repair of damage caused by extraordinary violence of the sea, the liability to repair the damage thus caused to the wall fell not upon A. but upon the whole of the level. Fobbing Commissioners v. Reg., 11 App. Cas. 449 ; 56 L. J., M. C. 1 ; 6.5 L. T. 493 ; 34 W. E. 721 J 51 J. P. 227— H. L. (E.). Presentment of Jury of Liability of Front- ager — Disqualification of Commissioner by reason of Interest.] — The presentment of a j ury at a court of sewers in 1861 found that the then owner of A.'s land was bound by reason of his tenure to repair a portion of the sea-wall fronting the land BO as to prevent the influx of the waters. In 1881-2 the commissioners of sewers made orders upon A. as the owner of the land to repair this portion of the wall, it having been destroyed by the aforesaid extraordinary storm and high tide. These orders were made " upon reading the pre- sentment" of 1861. One of the commissioners who made the orders was personally interested as an owner of lands within the level : — Held, that the orders were bad and must be quashed ; first, because, following Reg. v. Wliarton (2 B. & S. 718), s. 13 of 3 & 4 Will. 4, u. 22, which enables orders to be made upon a previous presentment, does not authorise an order upon a person who has become owner of the laud since the present- ment ; secondly, because the presentment being only of the ordinary liability did not justify an order to make good damage caused by an extra- ordinary storm : — Held, also, that if the commis- sioners had made the orders under the powers of s. 33 of the Land Drainage Act, 1861 (24 & 25 Vict. c. 133) they must themselves have found as a fact A.'s liability ; that if they had exercised guch a jurisdiction they would have been acting judicially, and that in that case the orders would have been invalidated by the fact that one of the commissioners was disqualified by reason of interest. lb. Vesting — Jurisdiction of Commissioners.] — S. 10 of the Sewers Act, 1883 (amending 23 Hen. 8, c. 5). by which all walls, banks, &c., adjoining the sea or tidal rivers are to be within the jurisdiction of the commissioners, does not vest such walls, &o., in the commissioners until they have taken them within their jurisdiction in the manner described in s. 47. West Norfolk Farmers^ Manure Company v. Archdale, 16 Q. B. D. 754 ; 55 L. J., Q. B. 230 ; 54 L. T. 561 ; 34 W. R. 401 ; 50 J. P. 500— C. A. Sea-shore not a " Street, Highway, or Public Place."]— /See Gas Company. Foreshore, Possession of— Prescription.] — See Lord Advocate v. Young, ante, col. 1605. Bight of Access to Sea— Foreshore.] — On a petition of right against the government for damages done to the petitioner's tenement by the execution of reclamation and other works upon the foreshore in front of it : — Held, that the petitioner by virtue of his tenement had the same right of access to the sea as a riparian pro- prietor has in respect to a tidal river. Attorney- General of Straits Settlement v. Wemyss, 13 App. Cas. 192 ; 57 L. J., P. 0. 62 ; 58 L. T. 358 —P. C. SEAMEN. See SHIPPING. SEARCH WARRANT. Malicions Application for,] — See Malicious Pkocedubb. SECURED CREDITOR. See BANKRUPTCY. SECURITY FOR COSTS. Of Appeal.]— jSee Appeal, II. 6. Appeals from County Court.] — See County COUBT, 6, c. On Petitions to Wind up Companies.] — See Company, XI. 3, *. In other Cases.] — See Practice, III. A. 8, d. SEDITION. See CRIMINAL LAW, IL 27. 1609 SETTLEMENT— 5e«jCT!ent». 1610 SEPARATE ESTATE. See HUSBAND AND WIFE. SEPARATION DEEDS AND AGREEMENTS. See HUSBAND AND WIFE. SEQUESTRATION. See ECCLESIASTICAL LAW— EXECUTION. SERVANT. See MASTER AND SERVANT. SERVICE OP WRITS, ETC. See PRACTICE. SESSIONS. See JUSTICE OF THE PEACE. SET-OFF. Set-off and Counter-claim.] — See Peacticb. In Windings up of Companies. ] — See GOM- PAlfY. In Bankruptcy.] — See Bankeuptct. In case of Costs.] — See Costs. SETTLEMENT. I. Settlements. 1. Generally, 1610. 2. Apportimiment of Funds Meoeived or Lost, 1614. 3. Forfeiture of Life Interest, 1616. 4. Construction, 1616. 5. Marriage Settlements. — See HdsbAND AND WlIE. 6. Voluntary Settlements — 13 Eliz. o. 5 — 27 Eliz. 0. i.—See Fbaud. 7. Power of Appointment — Exercise by Will.— See Will. 8. Powers of Trustees under. — See Teust AND Tbusteb. 9. Mectijication of. — See Deed AND Bond. II. Settled Land and Estates. 1. Settlement,U2Q. 2. Who entitled to Sell. a. In General, 1620. J. Infants, 1626. 0. Married Women, 1627. d. Trustees, 1627. 3. What Property may be Sold or Let 1630. 4. Leases, 1632. 5. Effect of Settled Land Act on Fot feiture Clauses, 1633. 6. Capital Moneys. a. What are, 1633. b. Application of. i. Costs and Incumbrances, 1633. ii. Improvements, 1636. iii. In other Cases, 1638. III. Of Paupeks.— . 3. WHAT PEOPEETY MAY BE SOLD OR LET. Hansion-house and Heirlooms.] — A testator bequeathed to his trustees certain articles as heirlooms to be annexed to his mansion-house and held in trust for the person for the time being entitled to the mansion-house under the equitable limitations thereinafter contained ; and he devised his mansion-house and estate, com- prising about 360 acres, to the trustees upon trust for his son for life, with equitable remain- ders over in strict settlement for the benefit of the son's issue ; and the testator directed that his mansion-house and certain lands thereto belonging, comprising about thirty acres, and described on a plan indorsed on the will, should be kept up as a place of residence for the person for the time being entitled to the possession thereof under his will, and that the heirlooms should at all times be kept in the mansion-house. Powers were given to the trustees to let, sell, or exchange any part of the settled estate except the mansion-house and lands described on the plan. The testator's son, the tenant for life, being desirous of selling the whole estate under the powers of the Settled Land Act, 1882, applied to the court, under s. 15, for leave to sell the excepted mansion-house and lands, on the ground that, owing to ill health and permanent residence elsewhere, he was unable to reside in the man- 1631 SETTLEMENT— /Settled Land and Estates. 1632 Bion-house, and also that, inasmuch as the estate was in proximity to a large town, the bulk of the estate could not be sold advantageously without the mansion-house and adjoining lands. The summons did not ask for the sale of or contain any reference to the heirlooms : — Held, that, on the evidence, the case was a proper one for a sale of the mansion-house and adjoining lands, but that leave for sale would not be granted without some direction as to the disposal of the heirlooms. Brown's Will, lit ni, 27 Ch. D. 179 ; 63 L. J., Ch. 921 ; 51 L. T. 156 ; 32 W. E. 891— V.-C. B. The summons was then amended, with the consent of the trustees, by asking for leave to sell the heirlooms also, under s. 37 of the Settled Land Act, 1882, by reference to an inventory verified by affidavit, whereupon an order was made for the sale of the heirlooms, vrith liberty for the tenant for life to bid at such sale. lb. Hansion-honse and Park — Assignees of Tenant for Life — Consent.] — The court, in the exercise of the discretion given by s. 15 of the Settled Land Act, in respect to ordering a sale of the mansion-house and park on the settled land, where the trustees of the settlement do not con- sent, will not, where the tenant for life has mort- gaged his life interest to its full val iie, make the order on his application without full information as to the proposed sale, and the consent of the mortgagees. Seiright's Settled Estates, In re, 33 Ch. D. 429 ; 56 L. J., Ch. 169 ; 55 L. T. 570 ; 35 W. R. 49— C. A. Heirlooms — Proposed Sale — Discretion of Court.] — A tenant for life of settled estates applied, under the Settled Land Act, 1882, for the sanction of the Court to a proposed sale of chattels consisting for the most part of pictures at the family mansion-house and settled as heir- looms. It was proposed that the sum arising from the sale should be applied in reduction of charges upon the settled estates. The estimated sum to arise from the sale was 7,300Z., and the annual income of the estate was about 7,500Z. The estates were settled as to one-half by a settlement made in 1876, and as to the other part by the will of a testator who died in 1882. The guardians ad litem of the tenant in tail in remainder and the trustees were opposed to the proposed sale. It appeared that since the tes- tator's death there had been no substantial depreciation in the property. The pictures were a characteristic feature of the mansion-house : — Held, that under the circumstances of the case the court would in the exercise of its discretion refuse to sanction the proposed sale. Beaumont's Settled Estates, In re, 58 'h. T. 916— Chitty, J. See also Houghton's Estate, In re, post, col. 1636. Incorporeal Hereditament — Tithes.] Esdaile, In re, post, col. 1635. ■See Title of Dignity or Honour.] — A dignity or title of honour, as an incorporeal hereditament, is "land" within the 'meaning of the 37th sec- tion of the Settled Land Act, 1882. The Settled Land Act, 1882, does not enable a limited owner to sell any property which, when vested in a tenant in fee simple, is by lavf inalienable. Bmtt-Carnao's Will, In re, 30 Ch. D. 136 ; 54 L. J., Ch. 1074 ; 53 L. T. 81 ; 33 W. E. 837— Chitty, J. Lease of Mansion-house.] — See Thompson'! 4. LEASES. Sanction of Court — Covenant to Eenew Lease at Future Time.] — The court has no power under ss. 4 and 5 of the Settled Estates Act, 1877,- to sanction a sub-lease of settled land (held under a renewable lease) for the unexpired residue of the term, with a covenant for the ex- tension of the term by a further sub-lease after the renewal of the head lease. Such a lease would, as regards the further lease, not be a lease taking effect in possession. FarnelVs Settled Estates, In re, 33 Ch. D. 599 ; 35 W. E. 250— North, J. By Tenant for Life — Impeachment for Waste — Permissive Waste.] — A tenant for years is liable for permissive waste, and therefore a lease by a tenant for life under 40 & 41 Vict. c. 18, s. 46, exempting the lessee from liabilities for " fair wear and tear and damage by tempest " is void as " made without impeachment of waste." In granting such a lease the tenant for life has a discretion as to what are proper covenants, and the lease will be void only when there is an outrageous omission of covenants. Xugent v. Oiithhert (Sugden on Eeal Property, 475) dis- tinguished. Davies v. Davies, 38 Ch. D. 499 ; 57 L. J., Ch. 1093 ; 58 L. T. 514 ; 36 W. R. 399— Kekewich, J. Building Leases for long Terms — Infant Tenant in tail.] — Where an infant tenant in tail in possession was eighteen years of age, the court refused, on the application of the trustees of the settlement, who had the powers of a tenant for life under s. 60 of the Settled Land Act, to grant general authority to make building leases not exceeding 200 years, but gave such authority subject to the approval of the court to the making oE each lease. Cecil v. Langdon, 54 L. T. 418— Pearson, J. Mineral Lease — Setting aside part of Bent — Capital Moneys — Tenant for Life impeachable for Waste.] — A person who is entitled for his life to the income of the money to arise from the sale of settled land and to the rents and profits of the settled land until sale, although to be deemed a tenant for life under s. 63 of the Settled Land Act, 1882, is not, properly speaking, " impeachable for waste in respect of minerals " within the meaning of s. 11. Nevertheless, where a lease of unopened minerals is made by such a person under the provisions of the act, three-fourths of the rents and royalties should be set aside as capital moneys arising under the act, and the residue only should go as rents and profits. Ridge, In re, Hellard v. Moody, 31 Ch. D. 504 ; 55 L. J., Ch. 265 ; 54 L. T. 549 ; 34 W. E. 159— C. A. '■ Principal Mansion-house " — Besidence Clause.] — A principal mansion-house and de- mesne in the county of Dublin were settled upon the same trusts as lands in the counties of Mayo and SUgo, with a condition of forfeiture 1633 SETTLEMENT— 5fe««eci Land and Estates. 1634 on non-residence in, selling of, or letting of the said mansion-house and demesne, which attached both to them and to the other lands settled : — Held, that they were a " principal mansion- house " and demesne within the meaning of s. 15 of the Settled Land Act, 1882 ; that the condition of forfeiture was void for the purposes of that act ; and that the court, on the facts, would authorise a temporary letting of them to be made. Thompson's Will, In re, 21 L. R., Ir. 109— M. R. 6. EFFECT OF SETTLED LAND ACT ON FORFEITURE CLAUSES. Ifon-resideiice — No Sale of Land.] — A tenant for life under a will broke the terms of a condi- tion of residence on pain of forfeiture contained in the will : — Held, that, no sale having been made, the forfeiture took efEect, notwithstanding s. 51 of the Settled Land Act, 1882. JELa/ynes, In re, Kemp v. Bayncs, 37 Ch. D. 306 ; 57 L. J., Ch. 519 ; 58 L. T. 14 ; 36 W. R. 321— North, J. Validity of.] — See Thompson's Will, In re, supra, and Paget's Settled Estates, In re, ante, col. 1622. 6. CAPITAL MONEYS. a. What are. Mineral Lease.] — See Ridge, In re, supra. Sale of Timber at Valnation^Fower to cut Timber — Claim of Tenant for Life to Proceeds.] — A tenant for life of an estate in strict settle- ment had power to cnt certain timber and other trees, to sell the same and to apply the proceeds to his own use. In 1885 the tenant for life sold the estate under conditions of sale which stated that the purchaser should in addition to the purchase-money pay for the timber according to a valuation. The tenant for life claimed, nuder the provisions for the settlement and under the Settled Land Act, 1882, s. 35, to be paid out of -the purchase-money the value of the timber : — Held, that the amount of the valuation of the timber was an addition to the price which the ; purchaser agreed to pay for the estate, and must be treated as capital money payable to the trustees under s. 21 of the Settled Land Act, 1882, and that the claim by the tenant for life to be paid the sums asked for failed. LleioelUn, In re, Zlewellin v. Williams, 37 Ch. D. 317 ; 57 L. ,J., Ch. 316 ; 58 L. T. 152 ; 36 W. E. 347— Stirling, J. b. Application of. i. Costs and Incumibranees. payment of Costs.] — In 1881 a tenant for life contemplated a sale of the estate, but he was restrained from selling (either under the power in the will or under that contained in the Settled Land Act) by an injunction granted in an action brought by persons entitled in remainder. In 1884 the action was dismissed with costs. The tenant for life claimed to be paid the difEerence of his costs, as between party and party and solicitor and client : — Held, that he was entitled, in defending the action which was dismissed with costs, to be paid his extra costs of so much of the action as related to the exercise of the powers contained in the Settled Land Act as incidental to the exercise of his power of sale under the provisions of the Settled Land Act, 1882. li. Costs irrecoverable from an insolvent com- pany were ordered to be paid out of a fund in court to the tenant for Ufe. Navan and Kingsoourt Railway, In re, Dyas, Ex parte, 2\ L. E., Ir. 369— M. R. " Proceedings for Protection of Settled Land " — Parliamentary Proceedings.] — Proceed- ings successfully prosecuted before the House of Lords Committee for Privileges to establish a claim to an earldom, the consequences of which were that the petitioner afterwards recovered estates which were subject to similar limitations, held to be " proceedings taken for the protection of settled land," the costs of which the court directed to be paid out of property subject to the settlement, under s. 36 of the Settled Land Act, 1882. Form of order. Carnac's Will, In re (30 Ch. D. 136), considered. Aylesford's iEarV) Settled Estates, In re, 32 Ch. D. 162 ; 55 L. J., Ch. 523 ; 54 L. T. 414 ; 34 W. R. 410 — V.-C. B. Incumbrance affecting Inheritance.] — The proceeds of settled land sold by the tenant for life under the Settled Land Act, 1882, can be applied in paying off a debt secured by a mort- gage of a long term. Frewen, In re, Previen v. James, 32 Ch. D. 383 ; 57 L. J., Ch. 1052 ; 59 L. T. 131 ; 36 W. R. 840— North, J. Sale of Heirlooms.] — The money arising by the sale, on the application of the tenant for life with the sanction of the court, of chattels treated in a settlement as heirlooms, and so far as the rules of law and equity would permit annexed to the settled freehold land, may be applied in the discharge of incumbrances affect- ing the inheritance of the settled land, without keeping such incumbrances on foot for the benefit of the infant remainderman in whom the heirlooms would, if unsold, have vested absolutely on his attaining twenty-one. Marlborough's (JDuhe') Settlement, In re, Marlborough (Bwhe) V. Majoribanhs, 32 Ch. D. 1 ; 55 L. J., Ch. 339 ; 54 L. T. 914 ; 34 W. E. 377— C. A. Mortgage affecting Fart of Settled Estate. ] — Under sub-s. 2 of s. 21 of the Settled Land Act, the jiurcha,se-money could be applied in discharging a mortgage which affected part of the land sold and another mortgage which affected another part of the settled estate, and that it was not necessary that the other mort- gage should be one affecting the whole of the settled estates. Chaytor's Settled Estate Act, In re, 25 Ch. D. 651 ; 53 L. J., Ch. 312 ; 50 L. T. 88 ; 32 W. R. 517— Pearson, J. Tithes subject to Annuity— Purchase with a view to discharge Incumbrance.] — By a charter in the reign of James I. a grant was made of certain tithes issuing out of the rectory of St. Botolph Without, Aldgate, in the City of London, to persons named in the grant, their 3 G 1635 SETTLEMENT— /SettZeci Land md Estates. 1636 heirs and assigns. In 1804, by a marriage settle- ment, it was provided that an annuity or clear yearly rentcharge of 6i0l. should issue and be payable out of the tithes in question for the term of 1,000 years. The tithes afterwards became vested in the trustees of a will, subject to the annuity created by the settlement. The trustees sold part of the tithes to certain railway companies for the sum of 30,670Z. The tenant for life under the will contended that the trustees of the will might, under s. 33 of the Settled Land Act, 1882, invest or apply the 30,670Z. as capital money arising under that act. By s. 21 of the same statute it is provided that capital money shall be applied (inter alia) in discharge, purchase, or redemption of in- cumbrances affecting the inheritance of the settled land, or other the whole estate the subject of the settlement. The tenant for life asked that the trustees might be at liberty to apply the 30,670Z. in the purchase of the annuity created by the settlement with a view to its discharge : — Held, that the tithes were un- questionably an incorporeal hereditament ; and that, as s. 2 snb-s. (10) of the Settled Land Act, 1882, includes incorporeal hereditaments, such tithes as the tithes in question were included. Held, also, that the annuity created by a settle- ment was not a rent, because it did not issue out of a corporeal hereditament ; but that it was an incumbrance on the tithes, and an incumbrance affecting the inheritance within the meaning of the Settled Land Act, 1882. Held, therefore, that the trustees might be at liberty to purchase the annuity with a view to its discharge. Esdaile, In re, Esdaile v. Hsdaile, 54 L. T. 637 — Chitty, J. land Drainage Charge.] — Where settled land is subject to a charge for land drainage improvements, repayable by instalments, money in the hands of the trustees of the settlement which is applicable as capital; money arising under the Settled Land Act, 1882, may now, under the provisions of the Settled Land Acts (Amendment) Act, 1887, be from time to time applied in payment of such portions of the in- stalments as represent capital, so as to relieve the tenant for life from the payment thereof, but such money ought not to be applied in pay- ment of such portions of the instalments as represent interest. Sudeley't {Lord') Settled Estates, In re, 87 Ch. D. 123 ; 57 L. J., Ch. 182 ; 58 L. T. 7 ; 36 W. E. 162— Kay, J. Purchase money of settled lands may be applied, at the instance of the tenant for life, in redemption of rent charges payable for loans for the drainage and improvement of other lands settled upon the like uses. Navan and Kings- court 'Railway, In re, Dyas, Ex parte, 21 L. K., Ir. 369— M. E. Where a tenant for life of settled land has prior to the Settled Land Act, 1882, created charges for land drainage and improvements imder the Improvement of Land Act, 1864, and other acts, which were repayable by instalments, he will not be entitled under the Settled Land Act, 8. 21, sub-s. 2, to have these charges paid out of the capital of the settled estates so as to relieve him from the payment of the instal- ments. Trustees who purchase such charges will hold them upon trust to receive the instal- ments payable by the tenant for life, and to treat them as capital. KnatelihulVs Settled Estate, In re, 29 Ch. D. 588 ; 54 L. J., Ch. 1168 ; 53 L. T. 284 ; 33 W. E. 569— C. A. ii. Improvements. "Silos."]— The tenant for life of a settled estate after the passing of the Settled Land Act, constructed "silos" upon the estate, and pro- posed to construct others. He then applied to the court to allow payment for the work done out of capital trust money under s. 25 (xi.) of the act : — Held, that though a " silo " might come within the term " buildings " used in the act, yet, inasmuch as the construction of silos was in the nature of an experiment, the expen- diture could not be sanctioned. Broadwater Estate, In re, 54 L. J., Ch. 1104 ; 58 L. T. 745 ; 33 W. E. 738— C. A. Water Supply — Drainage — Bebnilding. ] — A tenant for life under a settlement containing a discretionary trust for sale of the settled estates, and also a power to sell certain settled heirlooms, asked leave of the court under s. 37 of the Settled Land Act, 1882, that he might be authorised to sell part of the settled estates, and also a specified portion of the heirlooms ; that the money might be paid to the trustees, and that such part as might be necessary might be applied by them in paying for certain improve- ments, consisting of (1) a larger and better sup- ply of water to a mansion-house ; (2) a new and improved system of drainage of the mansion- house ; (3) rebuilding of the stables, which were out of repair ; (4) the building of an agent's house; and (5) the building of two cottages. The trustees submitted that the proposed im- provements (except the cottages) were not within the 25th section of the act of 1882 ; and, that even if they were, the court would not supersede the power of the trustees by giving leave to the tenant for life to sell either the estate or the heirlooms : — Held, that the proposed outlay was all within s. 25 of the Settled Land Act, 1882 ; and would have been authorised without the statute ; and leave given to the tenant for life to sell both the settled estates and the heirlooms, and for the application of the proceeds as prayed. SougMmi's Estate, In re, or Cholmondeley's {Marquis) Settled Estate, In re, 30 Ch. D. 102 ; 55 L. J., Ch. 37 ; 53 L. T. 196 ; 33 W. E. 869— V.-C. B. Extra Expenditure — Scheme — General Ap- proval of Trustees.] — In carrying out a scheme, which has been duly approved by the trustees, for improvements of permanent benefit to the settled estate, extra expenditure, not included in the contract forming part of the scheme sub- mitted to the trustees, may be charged on capital moneys part of the settled estate in the hands of the trustees, where such extra expendi- ture is incidental to and has properly been incurred in a due execution of the scheme, and where the approval of the trustees has been general, and not limited to the particular amount mentioned in the contract. Bulwer Zytton's Will, In re, Knebworth Settled Estates, In re, 38 Ch. D. 20 ; 57 L. J., Ch. 340 ; 59 L. T. 12 ; 36 W. E. 420— C. A. Approval of Scheme by Trastees before work commenced.]— In order that the court may 1637 SETTLEMENT— >Sfe«Zed Land and Estates. 1638 sanction the expenditure of "capital money" under the Settled Land Act, in payment of the cost of permanent improvements to the settled estate, a scheme for the proposed works must be submitted by the tenant for life to the trustees, before the works are commenced. If the tenant for life executes the works at his own expense, without first submitting a scheme to the trustees and obtaining their approval, the court cannot then authorise the repayment of the cost out of " capital money." Whether the expense of im- proveinents on lands which have been sold, and so are no longer comprised in the settlement, can be afterwards paid out of capital money, qusere. HotchTibi's Settled Estates, In re, 35 Ch. D. 41 ; 56 L. J., Ch. 445 ; 56 L. T. 244 ; 35 W. E. 463— C.A. Whether the court had power to sanction the payment for past expenditure, qusere. Broad- water JEstate, In re, 54 L. J., Ch. 1104 ; 53 L. T. 745 ; 33 W. E. 738— C. A. Appearance by Trustees on Application.] — The court will not hear counsel for the trustees of a settlement in support of au application by the tenant for life when his interest is opposed to those of the remaindermen, it being the duty of the trustees to act as a check upon him. Hotehhin's Settled JEstates, In re, supra. Per North, J. On such an application, the trustees should appear separately. Broadwater Estate, In re, supra. Bight of Tenant for life — Discretion.] — A tenant for life of settled lands is not deprived of the right of requiring capital moneys arising under the settlement to be applied in payment for permanent improvements by reason of the trustees having powers under which they might make the improvements themselves and pay for them out of the rents and profits of the settled property. The fact that the tenant for life wUl derive a benefit from the exercise of any power under the Settled Land Act is not in itself suffi- cient to prevent him from exercising the honest discretion required of him by s. 53 of the act. Stamford's (^Lord") Estate, In re, 56 L. T. 484— Stirling, J. Bepairs and ImprovementB — Income or Capi- tal.] — Lands were devised in 1861 to trustees during the lives of certain tenants for life, in trust to receive the rents and manage the estate with the powers of absolute owners. An annuity was directed to be paid to the tenant for life in possession out of the rents, and the surplus rents were to be laid out in the purchase of real estates, or accumulated for a period of twenty-one years from testator's death, and the income of the accumulations paid to the tenant for life ; from the expiration of that period the whole of the surplus rents yearly accruing to be paid to the tenant for life in possession, and also the income of the accumulated surplus. The period of twenty-one years from testator's death expired in .Tahuary, 1885. The trustees named in the will disclaimed, and the property had since been managed by a receiver, appointed by the court. The surplus rents accumulated during the twenty-one years amounted to 37,000Z. Eepairs and improvements amounting to between 4,000Z. and 5,000/. were required to be made on the settled property : — Held, that such of the pro- posed works as were in the nature of improve- ments within the description contained in e. 25 of the Settled Land Act, 1882, should be provided for out of the 37,000/., which was capital money within the act, and that those which were merely repairs must be paid for out of the income of the property. Clarke v. Thornton, 35 Ch. D. 307 ; 56 L. J., Ch. 302 ; 56 L. T. 294 ; 35 W. E. 603— Chitty, J. iii. In Other Cases. Transfer of Funds to Trustees of Settlement,] — Lauds in settlement having been purchased compulsorily under statutory powera, an order was made to transfer the funds in court repre- senting the purchase-money to the trustees of the settlement. Bathmines Drairmge Aet, In re, 15 L. E., Jr. 576— M. E. Option of Tenant for Life— Power of Trustees to give Receipts.] — In 1859 a suit was instituted for the administration of the estate of a testator, who had devised land in strict settle- ment. In 1886 the tenant for life sold the laud under the provisions of the Settled Land Act. Trustees had previously been appointed by the court for the purposes of the act. The purchaser refused to complete his contract, unless the pur- chase-money was paid into court, and an order was made on his application, with the consent of the tenant for life, giving him liberty to pay it in, and it was paid in accordingly : — Held, that by consenting to the order for payment of the purchase-money into court, the tenant for life had exercised the option given to him by snb- s. 1 of s. 22 of the act, of having the money paid either to the trustees of the settlement or into court, and that the money could not, there- fore, be paid out to the trustees, but must remain in court, and be invested or applied under the direction of the court. Semble, that the power to give receipts, which is conferred on trustees by s. 40 of the act, extends to trustees appointed by the court under s. 38. Coolies v. Coohes, 34 Ch. D. 498 ; 56 L. J., Ch. 397 ; 56 L. T. 159 ; 35 W. E. 402— North, J. Funds in Court — Interim Investment.] — Lands belonging absolutely to a charity were taken by a public body, and the purchase-money paid into court under the Lands Clauses Act : — Held, that the purchase-money could be dealt with under the provisions of the 32nd section of the Settled Land Act, 1882, as " money liable to be laid out in the purchase of land to be made subject to a settlement." Byron's Charity, In re, 23 Ch. D. 171 ; 53 L. J., Ch. 152 ; 48 L. T. 515 ; 31 W. E. 517— Fry, J. Sale of Beversion on a Lease — Application of Income.]— S. 34 of the Settled Land Act, 1882, and s. 74 of the Lands Clauses Consolidation Act, 1845, are similar enactments, so that where the facts are similar decisions on s. 74 are authori- ties on s. 34. As between tenant for life and remainderman, where lands subject to a bene- ficial lease are sold under the Settled Land Act, 1882, the tenant for life will, during the unex- pired period of the term, be entitled to so much only of the income of the invested purchase- moneys as equals the rents under the lease, and the rest of that income must be accumulated 3 2 1639 SHERIFF. 1640 and invested for the benefit of the inheritance until the date when the lease would have expired. Oottrell v. Cottrell, 28 Oh. D. 628 ; 54 L. J., Ch. 417 ; 52 L. T. 486 ; 33 W. R. 361— Kay, J. Tenant in Tail restrained from Alienation — Payment out to Trustees.] — Where funds of large amount were in court, representing the proceeds of sale of settled lands which were vested in a tenant in tail who was restrained by statute from alienating, the funds were, on the application of the tenant in tail, ordered to be paid out to trustees appointed for the purposes of the Settled Land Acts, 1882 and 1884 ; but the court declined to direct the trustees to give notice of any intended investments to the tenant in tail next in remainder. Bolton Estates Act, In re, 62 L. T. 728— Kay, J. Payment of Money out of Court— Appointment of Trustees.] — Where a testator's daughter was beneficial tenant for life of a fund paid into court upon the compulsory purchase of the tes- tator's property, the daughter being one of the two trustees of the will, and both trustees being desirous of regaining their trusts, and there being no power of sale in the will, the court appointed two new trustees of the settlement efEected by the will for the purposes of the Settled Land Act, 1882, and ordered the fund to be paid out to such trustees, to be held by them upon the trusts of the will. Wrights Trusts, In re, 24 Ch. D. 662 ; 53 L. J., Ch. 139— North, J. A testator devised freehold property to trus- tees in trust for his grandson for life, and then for his issue in tail. There were four trustees of the will, and the testator's grandson was one of such trustees. The will contained no power of sale. Shortly after the testator's death a portion of the property comprised in the will was purchased by a railway company under their powers, and the money was paid into court. Upon petition for payment of the money out of court, an order was made appointing three of the trustees of the will, omitting the testator's grandson (the tenant for life), to be trustees of the settlement effected by the will for the pur- poses of the Settled Land Act, 1882 ; and the fund was ordered to be paid out to such three trustees to be held by them upon the trusts of the will. And it appearing that the trustees of the will had advanced a large sum of money on mortgage, including, by anticipation, a sum of money equivalent to the fund in court — it was ordered that the three trustees appointed by the court be at liberty to pay the fund to the four trustees of the will upon the execution by them of a declaration of trust in favour of the three trustees of so much of the principal sum secured by the mortgage as should be equivalent to the proceeds of the fund ordered to be paid out of court. Sarrop's Trnsts, In re, 24 Ch. D. 717 ; 53 L. J., Ch. 137 ; 48 L. T. 937— Pearson, J. Settled to such uses as A. and B. should Appoint — Execution of Appointment not re- quired.] — Lands settled to A. for life with remainder to B. in tail were sold under the Settled Estates Act, 1877, the purchase-money was paid into court and invested, and the divi- dends ordered to be paid to A. for life. A. and B. executed a disentailing assurance assigning the money in court to a trustee upon such trusts as they should appoint, and discharging it of all trusts for reinvestment in land. A. and B. peti- tioned for the payment out of the fund to them. They had not executed an appointment to them- selves : — Held, that the money might be paid out without requiring them to execute any such appointment. Winstanley's Settled Estates, In re, 54 L. T. 840— North, J. Transmission of Proceeds of Sale by Trustees to America.] — L. was entitled to a share of cer- tain land in Wales, and by his will he devised the interest on the principal of all money re- ceived by his executors from Wales to his wife for life, and after her death, then his son was to have the whole of the money on attaining twenty- one. L. died domiciled in America, and his wife and son (who was a minor) were resident there. Trustees were appointed under the Settled Land Act of the share of L. in the land, and with the consent of the other beneficiaries it was sold. Application was made that L.'s share might be transmitted to his executors in America to be re-invested there : — Held, that the court had no power to allow the money to be sent to America, and that, if necessary, trustees must be appointed under the act to receive it in that country. Lloyd, In re, Edwards v. Lloyd, 54 L. T. 643 — Pearson, J. SEWERS. In Metropolis. ] — See Metropolis. In other Places.] — See Health. Courts of — Presentments at.] — See Se^ SEXTON. See ECCLESIASTICAL LAW. SHARES. See COMPANY. SHERIFF. 1. Duties and Liabilities, 1640. 2. Fees and Costs, 1643. 3. Interpleader by. — See iNTEEPLBADfiR. 4. WJiat may be taken in Execution, ^e. — See Execution. 1. Duties and Liabilities. Executing "Writ of Attachment.]— Where a writ of attachment has issued against a party 1641 SHEEIFF. 1642 to an action for contempt of court in non-com- pliance with an order for the delivery over of deeds and documents, the officer charged with the execution of the writ may break open the outer door of the house in order to execute it. Harvey v. Harvey, 26 Ch. 644 ; 51 L. T. 508 ; 33 W. E. 76 ; 48 J. P. 468— Chitty, J. Several Writs of Execution.] — The duty of a sheriflE who has several writs of execution to execute is to execute first that writ which is first delivered to him ; and when he has sold enough to satisfy that writ, to sell under the next in order. Therefore, if the proceeds of the sale of the goods of a debtor are not enough to satisfy the earlier writs in the hands of the sheriff, there can be no sale under the subse- quent writs. Orosthwaite, Ex parte, Pearce, In re, 14 Q. B. D. 966 ; 54 L. J., Q. B. 316 ; 52 L. T. 518 ; 33 W. K. 614 ; 2 M. B. R. 105— Cave, J. Setting aside Sale — Plaintiff purchasing for ITominal Consideration.] — The defendant's chat- tel interest in a farm of land was put up for sale under a fi. fa. at the suit of the landlord, who was the execution creditor. The sale was fully advertised, and, after two adjourn- ments for want of bidders, the solicitor for the plaintiff, who was the only bidder at the third sale, was declared the purchaser for \l. The interest in the farm was admittedly of value, but in the absence of collusive or improper conduct by the sheriff, the court refused to set aside the sale. CroTner v. Mwrphy, 20 L. R., Ir. 572— Q. B. D. Semoyal of Goods for Sale.] — Semble, a sheriff acts improvidently in removing goods for sale from tiie judgment debtor's establish- ment without his assent or other sufficient grounds. Purcell, In re, 13 L. R., Jr. 489 — Miller, J. Withdrawal— Power to Ee-enter.] — Where the sheriff has entered and then withdravm his writ in consequence of an arrangement having been come to between the execution creditor and the execution debtor, the sheriff cannot re-enter again without fresh instructions from the execution creditor. Shaw v. Mriy, 52 J. P. 182— Huddleston, B. Second Writ by different Judgment Creditor.] — If a second execution creditor levies a writ at a date subsequent to the first execution creditor's levy and anticipates the first execu- tion creditor in consequence of such arrangement as aforesaid, there is no duty cast upon the sheriff to report the fact of such second writ to the first execution creditor. lb. Seizure of Equity of Redemption.] — Where goods seized in execution by a, sheriff under a fi. fa. have been previously assigned by the execution debtor to a third person as security for a debt, the sheriff is not bound to interplead and thereby enable proceedings to be taken for an order to sell being made by a judge under s. 13 of the Common Law Procedure Act, 1860, but is at liberty to withdraw, though the value of the goods seized exceed the sum secured by the bill of sale, and the execution debtor therefore has an equity of redemption which is valuable. Scarlett v. Hanson, 12 Q. B. D. 213 ; 53 L. J., Q. B. 62 j 50 L. T. 75 ; 32 W. R. 310 — C. A. Notice of Landlord's Claim for Bent.] — There is no legal obligation upon a sheriff to give an execution creditor notice of a landlord's claim for rent. Davidson v. Allen, 20 L. E., Ir. 16 — Q. B. D. Non-Execution of Process — Same TTnder-Sheriff Acting under Successive Sheriffs.] — In Novem- ber, 1883, while D. was high sheriff of the county of K., civil bill decrees for money demands were delivered to his sub-sheriff, L., for execution in February, 1884. The solicitor for the plaintiff in the decrees wrote to L,, complaining of their non-execution, and by letter, dated the 18th of that month, L. wrote in reply, stating that he had been unable to levy the amounts, and asking for information as to the goods of the defendant which the plaintiff alleged were available. On the 21st February, H. succeeded D. as high sheriff, and re-appointed L. sub-sheriff, who retained the decrees imtil July, when he returned them unexecuted. They were in force until June. It was admitted that after H.'s appointment the defendants had suffi- cient goods from which the amounts of the de- crees might have been levied : — Held, that H. was liable in an action for negligence for not having executed the decrees ; that, having re- gard to the fact that L. continued in office as sub-sheriff, it was immaterial that no list had been made if the decrees in question were more than two months' old ; that the measure of damages was the amount of the decrees. Sim- mons V. Henehy, 16 L. E., Ir. 467— C. P. D. Under-sheriff^Liability of, for Proceeds of Execution — Death of Sheriff — Vacancy of Shrievalty.] — ^Where an under-sheriff (siijce deceased) acting as sheriff during the vacancy of the shrievalty under 3 Geo. 1, e. 15, s. 8. wrongfully retained the proceeds of an execu- tion : — Held, that an action for money had and received was maintainable against the executor of the under-sheriff by the execution creditors to recover the sum so wrongfully retained. [See now the Sheriffs Act, 1887 (50 & 51 Vict. c. 55), s. 25.] Gloucestershire Banking Compam/y v. Edwards, 20 Q. B. D. 107 ; 57 L. J., Q. B. 51 ; 58 li. T. 463 ; 36 W. R. 116— C. A. Liability for Removal of Goods after Claim for Rent.]— iSfee Landloed and Tenant, IV. 1. Liability for Damage to Goods seized.] — A sheriff is not liable for damage to goods which he has seized under a fi. fa. caused by a mob breaking in and injuring the goods, if he has used reasonable care and diligence in protect- ing them. Willis v. Comle, 1 C. & E. 353— Stephen, J. Semble, if a sheriff is let into possession of goods, of which a receiver, appointed by the Court of Bankruptcy, is already in possession, he will not be liable in damages for not protect- ing the goods against third parties. IT). Liability for Seizure— Interpleader Order Re- scinded.] — Where an interpleader order provided that no action should be brought against the sheriff, and the order was subsequently rescinded 1643 SHIPPING. 1644 owing to the default of the execution creditor to return the issue : — Held, that the claimant had no cause of action against the sheriff for the original seizure. Martin v. Tritton, 1 C. & E. 226— Lopes, J. liahility for Non-return.J— A sheriff cannot be held liable for the non-return of a writ of fi. fa. until he has been called upon and has neglected to make a return, and such neglect as will give a cause of action must be specifically alleged in the statement of claim. Shaw v. Xirby, 52 J. P. 182— Huddleston, B. False Return — levy — Cheque from Debtor— Ferformance of Condition.]— After the death, in May, 1880, of A., a shoplieeper, his daughter B. carried on the business. Judgment was obtained against B. personally, and a fi. fa. issued thereon and delivered to the sheriff in March, 1881. At this time B. was in possession of shop goods of considerable value, some of which had been the property of A. in his lifetime, and the rest were purchased out of the proceeds of sale of other goods of A. The sheriff, having required and obtained an indemnity from the execution creditor before seizure, received from the execu- tion debtor a cheque for 98Z., which, according to the evidence of some of the witnesses on behalf of the sheriff, was given to him as a security that the goods would be forthcoming in a short time, with the view of awaiting the result of certain proceedings in the Chancery Division then pending. The sheriff subsequently made a return of nulla bona, and the execution creditor having brought an action against him for a false return, and for money had and re- ceived, he repaid the amount of the cheque to the execution debtor, having retained it for a period of about ten months ; and at the trial claimed to have a verdict directed in his favour on the grounds that the goods were not the goods of B., and that the giving of the cheque under the circumstances was not a levy. No evidence was given of any testamentary dis- position by A. The judge having refused to give such direction, and a verdict having been found for the plaintiff : — Held, that assuming the cheque to have been given conditionally, its retention for so considerable a period by the sheriff was evidence from which the jury were at liberty to presume that the condition upon which it was to be returned to the execution debtor was not performed. Kelly v. Browne, 12 L, E., Ir. 348— Ex. D. Eetum— Fi. Fa.— Special Bailiff.]— When a sheriff has appointed a special bailiff to execute a writ of fi. fa. at the request and peril of the plaintiff, he should move to set aside any rule subsequently obtained by the plaintiff upon him to return the writ. If instead of doing so he returns that he appointed a special bailiff, to whom he refers as to the execution of the writ, the return may be set aside, even on motion by the plaintiff. TaU v. Mitchell, 22 L. E., Ir. 327 —Ex. D. 2. Fees and Costs. " Costs of Execution " — Expenses of Heaping Growing Crops.] — A sheriff, having taken in execution standing corn, expended money in having the same reaped, threshed, and dressed before sale. No authority to do this was given him either by the execution debtor or creditor, but it was done by the sheriff for the purpose of increasing, and did in. fact increase, the selling value of the com :— Held, that the sheriff had no power to incur this expense, and therefore was not entitled to the same as costs of the exe- cution under s. 46 of the Bankruptcy Act, 1883. Conder, Ex parte, Woodham, In re, 20 Q. B. D. 40 ; 57 L. J., Q. B. 46 ; 58 L. T. 116 ; 36 W. E. 526— D. Poundage.] — When the'bankruptcy of a judgment debtor supervenes after seizure, but before sale, by the sheriff under a writ of fi. fa., the sheriff is not entitled to poundage under the words " costs of execution " in sub-s. 1 of s. 46 of the Bankruptcy Act, 1883. Ludmore or iMdford, In re, 13 Q. B. D. 415 : 53 L. J., Q. B. 418 ; 51 L. T. 240 ; 33 W. E. 152 ; 1 M. B. E. 131 — Cave, J. Fees — Sale under fi. fa. partially abortive — Fart of Goods Sold before Bankruptcy of Exe- cution Debtor.] — A writ of fi. fa. for 283Z. is. Id. was delivered to a sheriff, under which he seized several musical instruments at the warehouse of P., the execution debtor, who was a pianoforte seller ; and without receiving any directions from either P. or the execution creditor, but acting on his own responsibility, the sheriff without, as the court considered, sufficient grounds for doing so, removed the goods from P.'s premises to a sale mart situate close by, where a small part of them were sold by auction for 62Z. 5«., and in conse- quence of the insufficient bidding the sale of the remainder was adjourned. P. was adjudicated a bankrupt before the day to which the sale was adjourned. The sheriff claimed, as against P.'s assignees in bankruptcy, to retain out of the proceeds of the sale in his hands fees on the entire sum for which the execution was issued, together with the expenses of removing the goods to the sale mart and the hire of the mart : — Held, that the sheriff was only entitled to re- tain fees on the amount actually levied, and that the residue of his claim must be disallowed. Pwoell, In re, 13 L. E., Ir. 489— Miller, J. SHIPPING. I. Passenger Ships, 1646. II. Babges, 1648. III. OWNEES. 1. Part Owners, 1648. 2. Managing Oioners, 1649. 3. Actions of Restraint, 1650. 4. Liability for Necessaries, 1651. IV. Master and Seaman. 1. Master, 1652. 2. Seaman, 1655. V. Sale and Mortgage 1. Sale, 1657. 2. Mortgage, 1657. 1645 SBIPVmG— Passenger Ships. 1646 VI. Bills of Lading. 1. I'orvi of, 1658. 2. Hffeet of, 1659. 3. JEJmceptions from Liability, 1660. 4. Bights and Liabilities of Indorsees, 1662. 5. Sending with Sills of Exchange, 1663. VII. Chaktbrpaety. 1. Stamping, 1663. 2. The Contract, 1663. 3. Exemptions from Liability, 1667. VIII. Cargo. 1. Stowage, 1668. 2. Co«Ss o/^ Discharging — iJocA Charges, 1668. 3. Actions for Loss and Non-delivery, 1670. IX. Freight. 1. When Payable, 1673. 2. To and by whom Payable, 1673. 3. Time for Payment, 1673. 4. Bate and Amount, 1674. 5. Lden, 1674. X. Demttkeage, 1675. XI. Pilotage and Pilots. 1. Exemptions from Employing , 1678. 2. Exemption of Owners from Lia- bility, 1679. 3. Other Matters relating to, 1681. XII. Collision. 1. On the High Seas. a. Eegulations Generally, 1681. *. Lights, 1683. c. Fog, 1684. d. Vessels Crossing, Overtaking, and Meeting, 1686. e. ProbabiUty of Risk, 1688. /. Speed, 1689. g. Narrow Channels, 1689. 2. In other Places. a. Generally, 1690. b. Danube, 1690. c. Humber, 1690. d. Mersey, 1691. e. Tees, 1691. /. Thames, 1691. g. Tyne, 1693. 3. Duties after Collision, 1693. 4. Actions for Damage. a. Generally, 1694. *. What Becorerable, 1698. 5. Limitation of Liability. a. In what Cases, 1701. b. Practice, 1701. XIIL Salvage aud Towage. 1. Services entitling to Salvage, 1703. 2. Life Salvage, 1704. 3. Persons entitled to Salvage, 1705. 4. Bights of Salvors, 1706. 5. Salvage Agreements, 1707. 6. Bight to Beoover Salvage Ex- penses, 1708. 7. Amount Awardable. a. Principles on which Award made, 1709. b. Apportionment, 1710. c. Reviewing Award on Appeal, 1711. 8. Practice in Salvage Actions, 1711. 9. Agreements as to Towage, 1712. 10. lAabilityfor Negligence in Towing, 1713. XIV. Bottomry, 1714. XV. Average, 1715. XVI. Docks, Harbours, Lighthouses, and "Wharves, 1717. XVII. Jurisdiction. 1. Admiralty Division, 1719. 2. Cownty Cov/rts, 1720. 3. Vice-Admiralty Courts, 1721. XVIII. Practice. 1. Writ and Pleadings, 1721. 2. Default Proceedings, 1722. 3. Stay and Transfer of Proceedings, 1723. 4. Inspection and Discovery, 1724. 5. Trial, 1724. 6. Evidence, 1724. 7. Da/mages, 1725. 8. Sale of Ship, 1726. 9. Warrant ^ Arrest, i121. 10. Begistrar's Beport, 1727. 11. Costs, 1728. 12. Appeals, 1729. XIX. Wrecks, 1730. ,XX. Inquiries by Board of Trade, 1730. XXI. Detention of Ships by Board of Trade, 1730. I. FA8S£K6EB SHIPS. Custom as to Bight to Carry — Charterparty.] A charterparty, not amounting to a demise of the ship, provided for the carriage of a full and complete cargo of lawful produce and mer- chandise for payment of a lump freight, but was sUent as to the use to which the passengers' cabins might be put : — Held, that the charterers were not entitled to carry passengers in the cabins. Shaw v. Aitken, 1 C. & E. 195 — Denman, J. No custom exists entitling the charterer under the above circumstances to carry passengers, or entitling the shipowner to have passengers car- ried for his benefit. lb. Loss of Life — Both Ships to blame— Claim by Person not responsible for Negligence — ^Ad- miralty Bule as to Damages.] — A passenger on board the " Bushire " and one of the crew lost their lives by drowning in consequence of a collision with the " Bemina." Both vessels were to blame, but neither of the deceased had anything to do with the negligent navigation of the " Bushire " : — Held, that their representa- tives could maintain actions under Lord Camp- bell's Act against the owners of the " Bernina," 1647 SBIFPING— Barges— Owners. 1648 and could recover the whole of the damages ; 8. 25, sub-s. 9, of the Judicature Act, 1873, not being applicable to such actions. Thorogood v. Bryan (8 C. B. 115) and Armstrong v. Lan- cashire and Yorkshire Railway (10 L. E. Ex. 47) overruled. Mills v. Armstrong. Tlie Ber- nina, 13 App. Cas. 1 ; 57 L. J., P. 65 ; 58 L. T. 423 ; 36 W. R. 870 ; 52 J. P. 212 ; 6 Asp. M. C. 257— H. L. (E.) Liability for Injury and Death caused by Collision at Sea — Keaning of Words " Loss or Damage" — Passenger's Ticket.] — The personal representatives of a deceased man cannot main- tain an action under Lord Campbell's Act (9 & 10 Vict. c. 93), where the deceased, if he had survived, would not have been entitled to recover. The defendants, a, steamship company, issued a passenger's ticket, which contained amongst others, the foUowiug condition : — " The com- pany will not be responsible for any loss, damage, or detention of luggage under any cir- cumstances. . . . The company will not be re- sponsible for the maintenance of passengers, or for their loss of time or any consequence arising therefrom . . . nor for any delay arising out of accidents ; nor from any loss or damage arising from the perils of the sea, or from machinery, boilers, or steam, or from any act, neglect or default whatsoever of the pilot, master or mariner : " — Held, that the words " loss or damage arising froin the perils of the sea," as contained in the above conditions, exempted the defendants from liability for injury or loss of life to a passenger occasioned on the voyage by the negligence of the defendants' servants. Saigh v. Royal Mail Steam Packet Company, 52 L. J., Q. B. 640 ; 49 L. T. 802 ; 48 J. P. 230 ; 5 Asp. M. C. 189— C. A. Conveyance of Passengers by Steamer — Cer- tificate — Persons carried Gratuitously.] — The Merchant Shipping Act, 1854, s. 303, defines" pas- senger" as including any person carried in a steamship other than the master and crew, and the owner, his family and servants ; and " pas- senger steamer " as including every British steam- ship carrying passengers between places in the United Kingdom ; and in s. 318 provides that no passenger steamer shall proceed to sea, or upon any voyage and excursion with passengers on board, without a certificate as therein prescribed, and a penalty is imposed for offending against the section. The Merchant Shipping Act of 1876, ex- empts from these provisions steamships carrying passengers not exceeding twelve in number. The owner of a tug steamer called the " Flying Hawk," was summoned to answer a complaint that a certain passenger steamship, called the " Plying Hawk," of which he was owner, went to Sea on the 21st July, 1882, from Dublin, with more than twelve passengers oh board, with- out any Board of Trade certificate, and without having a duplicate of such certificate put up in some conspicuous part of the ship, contrary to the provisions of the 17 & 18 Vict. c. 104; s. 318, and the 39 & 40 Vict. c. 80, s. 16. The persons on board the steamer on the occasion in question, other than the maStfer and crew, considerably ex- ceeded twelve in number, and had been invited for a pleasure trip in respect of which none of them paid anything. The magistrate having dis- missed the summons ; on a case stated : — Held, that the magistrate, if he believed the evidence, should have convicted the defendant. Xiddle v. Mdston, 14 L. E., Ir. 1 ; 15 Cox, 0. 0. 379— Q. B. D. County Court— Admiralty Jurisdiction- Car- riage of Passengers' Luggage.] — Passengers' luggage carried on board a ship is not " goods " within the meaning of the County Courts Ad- miralty Jurisdiction Amendment Act, 1869, and consequently the Act does not confer jurisdiction to try a claim arising out of the loss of such luggage, as a court having Admiralty jurisdic- tion. Rea. V. Oity of London Conrt (Jitdge), 12 Q. B. D. 115 ; 53 L. J., Q. B. 28 ; 51 L. T. 197 ; 32 W. E. 291 ; 5 Asp. M. C. 283— D. II. BAB&ES. Navigation — Watermen's Act.] — Under the Thames Conservancy and Watermen's Acts, and bye-laws thereimder, if a barge under weigh exceeds 50 tons, there must be two qualified licensed watermen on board, and one is not suffi- cient though assisted by another unqualified man. Perkins v. Gingell, 50 J. P. 277— D. Assignment of — Whether Begistration re- quired.] — See Gapp v. Bond, post, col. 1658. in. OWNERS. 1. PAET-OWNERS. Jurisdiction — Admiralty Court Act, 1861.] — Quaere, whether s. 8. of the Admiralty Court Act, 1861, giving the Admiralty Court jurisdiction to decide questions between co-owners, is not con- fined to questions between registered co-owners. Tlie Bonnie Kate, 57 L. T. 203 ; 6 Asp. M. C. 149— Butt, J. Power of Sale by Court.] — The court will not exercise the power of sale conferred on it by 24 Vict. c. 10, s. 8 (2), by ordering the sale of a ship, unless a part owner — whether he be the owner of a minority or majority of shares — makes out a very strong case. Continued and embittered disagreements between two part owners were held not to constitute sufficient reason for the interference of the court. The Marion, 10 P. D. 4 ; 54 L. J., P. 8 ; 51 L.T.906 ; 33 W. R. 432 ; 5 Asp. M. C. 339— Butt, J. Transfer of Share— Bill of Sale.]— The mana- ging owners of the steamship " B. K." in 1882 agreed to sell the defendant V. one sixty-fourth share in the " B. K.," for which he gave them a bill of exchange for 156Z., and received from them a receipt for the same as " being one sixty- fourth share in the s.s. ' B. K.' " In 1883 the managing owners sent V. %l. in respect of profits on his share, and subsequently sent him a state- ment of accounts. No bill of sale was ever executed by the managing owners, and it appeared that their shares in the " B. K." were mortgaged at the time of the sale to V., and that subsequently they never were in a position to redeem theUi. Certain of the owners having paid losses incidental to the working of the ship, now sued V. as a co-owner for his proportion of the losses : — Held, that, notwithstanding the 1649 SHIPPING— Owners. 1650 receipt by V. of the 8^., he was not, either in law or equity, a co-owner, that the managing owners had no authority to pledge his credit, and that therefore he was not liable. The Bonnio Kate, infra. dtarterparty when Binding.]— In an action of restraint it appeared that the plaintiffs, a minority of the co-owners, had given notice to the managing owner that they declined to be bound by any new charterparty. The managing owner, who had been appointed manager with the sanction of the plaintiffs, had on" the day when the above notice was given to him, con- cluded an arrangement for a charterparty, and had himself signed the charterparty, though it was not signed by the charterers till some days afterwards : — Hdd, that the charterparty was binding on the plaiutiffe. Tlie Vindobala, 13 P. D. 42 ; 57 L. J., P. 37 ; 58 L. T. 353— Butt, J. Eeversed on the facts, 14 P. D. 50 ; 58 L. J., P. 51 ; 60 L. T. 657 ; 37 W. E. 409— C. A. Liability of Furchaaer.] — A purchaser of shares in a ship, which at the time of the sale is on a voyage, is liable for the expenses of this voyage, and of the vessel's outfit for it, and is entitled to a share of the freight. lb. Charter.] — ^A vessel was chartered for twelve months, and during the currency of the charter the charterers made default in certain payments and the charter lapsed. The vessel was rechartered by a voyage charter from K. to England. During the performance of this voyage the defendant purchased a share in this vessel : — Held, on objection to the registrar's report in a co-ownership action, that the defen- dant was not liable to bear any of the losses occasioned by the time charter. The Meredith, infra. Iiiability of Trading Owners.]— Part owners who do not dissent from the employment of a ship, and are aware that other part owners have dissented, are liable to bear the expenses, and are entitled to receive the profits of the ship in the proportion which their shares bear to the number of shares in the ship, after the deduction of the shares of the dissentient part owners. Tlte Vin- dohala, supra. 2. MANAGINa OWNERS. Semnneration.] — A part owner being the manager of a ship, is entitled to remuneration for his services, but there is no fixed rate ap- plicable. The Meredith, or White v. JDitchfield, 10 P. D. 69 ; 52 L. T. 520 ; 5 Asp. M. C. 400— Bntt, J. Accounts — ^Reference — Beport — Stay of Exe- cution — Costs.] — A managing owner, who had not delivered accounts for nine years, instituted a co-ownership action for settlement of accounts, and for payment of the balance found due to him, and claimed certain items in respect of materials supplied to the ship for which he had not paid, and for which the defendants were being sued in the Queen's Bench Division. The registrar in his report allowed the plaintiff these items. Upon application to confirm the report, and for judgment, the court decreed payment of the amount found due by the registrar, but stayed execution until the defendants were protected against the claims in the Queen's Bench Division, and refused the plaintiff the costs of the action upon the ground of delay in rendering his accounts. The Charles Jaehson, 52 L. T. 631 ; 5 Asp. M. C. 399— Butt, J. Objection to Beport.] — Where an action is instituted in an Admiralty District Registry by part owners of a ship against the managing owner for an account, and the writ claims an account under Ord. III. r. 8, and an order for the filing of the accounts is made under Ord. XV. r. 1, and the account is proceeded with pursuant to order, and the district registrar reports thereon, such report is to be treated as- the usual report in an Admiralty Court action, and if the defendant seeks to take objection thereto, he must do so according to the pro- visions of Ord. LVI. r. 11, otherwise the plaintiff will be entitled to judgment thereon. Oowan V. Sprott, 51 L. T. 266; 5 Asp. M. C. 288 — Butt, J. Objecting to — Extension of Time.] — The court will not extend the time for objecting to the registrar's report in a co-ownership action without special grounds being shown by the- party seeking to object. 7J. Payment to— -Misapplication by Him — Bights of Owner Paying.] — Where a part-owner of a ship pays to the managing owner his contribu- tion due upon the ship's accounts as agreed between the co-owners, the managing owner receives such contribution as agent for all the owners ; and in the event of the managing owner misapplying such payment to his own use, and not paying the ship's accounts there- with, the contributing owner is entitled to be credited with the amount so paid, but aU the owners, including himself, must make good the defalcations in proportion to their shares. The Ida, 55 L. T. 59 ; 6 Asp. M. C. 21— Butt, J. See also The Bora Tvlly, post, col. 1653. Charges given by — Bights of Co-owners — Mortgagee.] — See The Fautt, post, col. 1658. Authority of Master to Bind.] post, col. 1652. See reff.. Duty as to Cargo on Failure of Consignee to take Delivery.] — See The Clan Maedonald, post, col. 1669. 3. ACTIONS OF RESTRAINT. Bail, who can obtain — Ship's Husband.] — The plaintiff and all the other owners of a vessel appointed two persons as ship's husbands and managers by an agreement, which stated that they should be, and should at all times there- after discharge the duties of, ship's husbands and managers of the said vessel and of agents for the owners, their executors and adminis- trators. The agreement also gave the managers authority to perform all the usual duties of ship's husbands :— Held, that this agreement did not debar the plaintiff as owner of two sixty-fourth shares in the ship from obtaining 1651 SHIPPING— Master and Seamen. 1652 in an action of restraint bail from the other part owners in the value of his shares. Thu Migland, 12 P. D. 32 ; 56 L. J., P. 115 ; 56 L. T. 896 ; 55 W. K. 367 ; 6 Asp. M. C. 140— Hannen, P. Bail Bond.] — Where the defendants in an action of restraint have given a bond for the safe return of the ship they are still at liberty to dispute the plaintifE's right to bring the action, and the court, if satisfied that the plain- tififs have no such right, will set aside the bond. The Keroula, 11 P. D. 92 ; 55 L. J., P. 45 ; 55 L. T. 61 ; 35 W. E. 60 ; 6 Asp. M. C. 23— Hannen, P. Release of Sureties.] — In an action of restraint two sureties executed a bail bond for the safe return of the ship. No time was fixed in the bond at which the liability of the sureties should cease. After the bond had. been in existence for nearly three years, and when the vessel was in this country, and the owners of the majority of shares were changed, the sureties applied to be released from the bond : — Held, that the application was reasonable, and the bond was ordered to be cancelled. The Vivienne, 12 P. D. 185 ; 56 L. J., P. 107 ; 57 L. T. 316 ; 36 W. E. 110 ; 6 Asp. M. C. 178— Butt, J. How long it Continues — Second Action.] — Where minority owners have instituted an action of restraint, claiming security for the safe return of the ship to a named port within the jurisdiction, and a bond is given by the defen- dants for that purpose, such bond remains in force until the ship returns to that port, and the plaintiffs are not entitled to institute another action for further security upon the ship's return to another port within the jurisdiction, and if such second action is instituted, it will be dis- missed with costs. The Megalia, 51 L. T, 904 ; 5 Asp. M. G. 338— Butt, J. — — Form.] — In an action of restraint the bail bond should not be given to pay what may be adjudged against the defendant in an action, but simply for the appraised or agreed value of the plaintiff's shares, in case the ship does not return to the particular port named in the bond. Tlie Soiert Dickinson, 10 P. D. 15 ; 54 L. J., P. 5 ; 52 L. T. 55 ; 33 W. E. 400 ; 5 Asp. M. C. 341— Butt, J. 4. LIABILITY FOE NBCESSAEIES. Lien for.] — No maritime Uen attaches to a ship in respect of costs or other necessaries supplied to it. Laws v. Smith, or The Sio Tinto, 9 App. Cas. 356 ; 50 L. T. 461 : 5 Asp. M. C. 224^P. C. Action in rem— Time of Attachment of Claim.] — The lien of the plaintiff in an action in rem under s. 4 of the Admiralty Court Act, 1861, takes effect from the moment of the arrest of the ship. Where, therefore, such an action was commenced against a vessel belonging to a limited company, and the company after a war- rant of arrest had been served was ordered to be wound up : — Held, that the official liquidator had no claim to the proceeds of the vessel in the hands of the court as against the plaintiff. The Cella, 13 P. D. 82 ; 57 L. J., P. 55 ; 59 L. T. 125 ; 36 W. E. 540; 6 Asp. M. C. 293— C. A. Supplied to Foreign Vessel in English Port.]— The statute 3 & 4 Vict. c. 65,8. 6, does not give a maritime lien in respect of necessaries supplied to a foreign ship in an English port. Northcote v. Seinrich Bjorn (Owners}, 11 App. Cas. 270 ; 55 L. J., P. 80 ; 55 L. T. 66 ; 6 Asp. M. C. 1— H. L. (E.). Affirming 33 W. E. 719— 0. A. The plaintiffs advanced to the part-owner of a foreign ship then at Liverpool money for necessaries for the ship. The part-owner having sold his interest in the ship to the defendants, the plaintiffs brought an action in rem for the amount of the advances :— Held, that the action could not be maintained. lb. Priority — Mortgage Action.]— A claim by the plaintiff in an action for necessaries brought under s. 4 (or, semble, under s. 5) of the Admiralty Court Act, 1861, even though it includes wages paid to the ship's crew at the request of the owner, is not entitled to prece- dence of a mortgagee's claim. Semble, prece- dence might have been gained by obtaining prior permission from the court to make the payment. The Lyons, 57 L. T. 818 ; 6 Asp. M. C. 199— Butt, J. IV. MASTER AND SEAMEN. 1. MASTEE. Duty as to Repair.] — If a vessel after she has started on her voyage receive damage, the master, in considering what steps he shall take in regard to carrying on the cargo or first repair- ing the ship, is bound to consider not one indivi- dual interest, but the interests of all concerned ; whether it be to return to his port of loading and repair, or repair at the nearest possible place before proceeding, or go on without repairing ; but if it be in his power to effect the repairs vrithout any great delay or expense to the interests intrusted to his charge, it is his duty to repair before proceeding. The Rotul, 51 L. T. 28 ; 5 Asp. M. C. 259— D. Authority to make Salvage Agreements.]— See The Renpor, post, col. 1707. Authority to make Towage Agreements.]— See Wellfield (_0w7iers') v. Adamson, post, col. 1712. Liability of, Error in Date of Bill of Ladii^— Ship's Brokers,] — The mere employment of ship's brokers at a foreign port to find a cargo for a ship and adjust the terms upon which it is carried does not give them implied power to relieve the master, when he signs biUs of lading presented to him, from the duty of seeing that the dates of shipment are correctly stated in the bills. In breach of that duty the master is liable to his owners. Stumore v. Breen, 12 App. Cas. 698 : 56 L. J., Q. B. 401— H. L. (E.). Wages and Disbursements — Managing Owner, 1653 SHIPPING — Master and Seamen. 1654 Fraud of.] — A master on his appointment agreed with the managing owner that he, the master, should find the provisions for the officers and crew at a certain rate per day. The master sub- sequently agreed with the managing owner, who was also a ship's stoi'e dealer, that the managing owner should supply the provisions and should charge them against moneys of the master which he held in his hands. The managing owner, however, debited his co-owners with the costs of the provisions, and fraudulently applied the master's money to his own purposes : — Held, in an action in rem against the owners by the master to recover wages and disbursements, that the master was entitled to credit for such an amount in the settlement of his accounts with the owners, the fraudulent application of his money by the managing owner being a wrong done to the co-owners for which he was not responsible. The Dora Tully, 54 L. T. 467 ; 5 Asp. M. C. 550— Hannen, P. Action in rem.] — A master who has incurred liabilities in respect of necessaries for the ship can maintain an action in rem for " disbursements," though he has made no pay^ ment in respect of such liabilities at the time the action is brought. The Feronia (2 L. E., Adm. 65) and The Fairport (8 P. D. 48) approved ; Tlie Chieftain (Br. & L. 104) and The Edwin (Br. & L. 281) overruled. Tlie Sara, infra. Lien.] — ^Under the Admiralty Court Act, 1861, ri. 10, and the Merchant Shipping Act, 1854, s. 191, the master has a maritime lien on the ship for disbursements. The Mary Ann (1 L. R., Adm. 8) and The Glentanner (Swa 415) approved. The Sara, 12 P. D. 158 ; 56 L. J., P. 160 ; 57 L. T. 328 ; 35 W. E. 826 ; 6 Asp. M. C. 163— C. A. Reversed 14 App. Gas, 209— H. L. (E.). Quaere, has a master under s. 10 of the Admiralty Court Act, 1861, a maritime lien for his wages and disbursements 1 The Beeswing, injra. Priority of Lien. J— Under the Admiralty Court Act, 1861, s. 6, the master of a ship has a maritime lien on it for disbursements, and his claim has priority over that of a purchaser. The Mary Ann (1 L. E., Adm. 8) followed. The Ringdove, 11 P. D. 120 ; 55 L. J., P. 56 ; .55 L. T. 552 ; 34 W. B. 744 ; 6 Asp. M. C. 28— Hannen, P. Maritime Lien — Bight against Ship- owners or Charterers — Authority.! — Where a ship is chartered raider a charter providing that the master shall be appointed by the charterers, that the owners are to provide and pay for all provisions and wages of captain and crew, and for the necessary equipment and efficient working of the ship, that the captain is to be dismissed . by the owners if he fails to give satisfaction, and that the charterers shall provide and pay for all coals, pilotages, port charges, &c., the master is the servant of the shipowners, and hence he has a right in rem for his wages and such disburse- ments as are necessary for the navigation of the ship, and which the charterers had not by the provisions of the charterparty undertaken to pay ; and semble, per Lord Esher, M.E., if the charterers had refused to make these disburse- 1 ments, and without them the ship could not be navigated, the master would be entitled to charge them against the shipowners. Semble, where the master is the servant of the charterers and not of the shipowners, he has no right against the owners in respect of wages and dis- bursements. The Beeswing, 53 L. T. 554 ; 5 Asp. M. 0. 484— C. A. By charterparty it was agreed that the owners of the ship should provide and pay for provisions and wages, and that the charterer should provide and pay for coals and other expenses. The master was to be appointed by and was to follow the instructions of the charterer. The master, with notice of the charterparty, ordered and made himself liable for provisions and coals for the vessel at a foreign port. These provisions and coals were necessary to enable the vessel to perform her voyage : — Held, in an action by the master against the vessel, that he was entitled to recover for the provisions but not for the coals, as by the terms of the charterparty he had no power to pledge the owner's credit in respect of them. Tlie Turgot, 11 P. D. 21 ; 54 L. T. 276; 34 W. E. 552;' 5 Asp. M. C. 548— Hannen, P. Agreement with Owners — Loss of Lien — Non-payment.] — A master, who after receiving a portion of his wages from the managing owners, elects to allow the balance to remain in their hands at interest, by so doing loses his lien, and cannot recover the balance in rem, but if he has had no opportunity of receiving his wages, or has been refused payment of them on demand, the mere fact of his allowing them to remain in the managing ovnier's hands after they become due will not deprive him of his remedy. The Rainhow, 53 L. T. 91 ; 5 Asp. M. C. 479— Butt, J. Where shipowners, in answer to a claim for wages, plead an agreement between the manag- ing owner and the plaintiff, that the plaintSf shall, instead of receiving his wages, allow it to remain in the hands of the managing owner, and has thereby foregone his right against the ship, the onus is upon the defendants to clearly prove that there was an express arrangement to that effect, before the court will deprive the plaintiff of his right. lb. Wages — Uisconduct — Mortgage.] — A mort- gagee took possession of a ship by putting a man on board and giving notice to the master. The latter, by order of the mortgagor, took the vessel to sea with the man in possession on board. In an action by the master for wages, and for com- pensation for wrongful dismissal, the registrar awarded him a sum as compensation, being the amount of wages payable for two months after the mortgagee took possession: — Held, on appeal, that the master had been guilty of misconduct in taking the vessel to sea, and could not as against the mortgagee be properly awarded any sum as compensation for wrongful dismissal. The Fairport, 10 P. D. 13 ; 54 L. J., P. 3 ; 52 L. T. 62 ; 33 W. E. 448 ; 5 Asp. M. C. 348— Butt, J. Bight to Wages up to Final Settlement of Claim.] — A master is not entitled under the Merchant Seamen (Payment of Wages) Act, 1880, s. 4, to wages up to the final settlement of his claim. TheArina, 12 P. D. 118 ; 56 L. J., P. 1655 SHIPPING— Master and Seamen. 1656 57 ; 57 L. T. 121 ; 35 W. R. 654 ; 6 Asp. M. C. 141— D. Bight to Ten Days' Double Pay.]— A master is not entitled under ss. 187 & 191 of the Mer- chant Shipping Act, 1854, to the double pay for delay in the payment of wages recoverable by " seamen " under the former section. The Princess Seleiia (Lush. 190) overruled. li. Sufficient Cause.] — Where, in an action for master's wages, it appears that, at the institution of the suit, accounts are outstanding between the owners and the plaintiflE, and that the same have not been taken or settled, and that within two days of the institution of the suit the wages are paid, the owners have not refused to pay " without sufficient cause " within the meaning of s. 187 of the Merchant Shipping Act, 1854, and therefore the plaintiff is not entitled to recover ten days' double pay. The Turgot, supra. Under the provisions of s. 187 of the Merchant Shipping Act, 1854, and b. 4 of the Merchant Shipping Act, 1880, as to non-payment of wages, the right to recover ten days' double pay and wages to the time of final settlement is not en- forceable where there is a bon^ fide question as to liability. Tlie Rainbow, 53 L. T. 91 ; 5 Asp. M. 0. 479— Butt, J. 2. SEAMEN. Expenses of Sending Home — Solicitor's Lien — Priority.] — Solicitors for defendants in a salvage action against a foreign ship, who are entitled to a charge upon the ship, or the pro- ceeds thereof, for their costs and expenses in- curred in the preservation of the property, do not take priority of the claim of the foreign government, who, on the abandonment of the ship by her owners, are entitled, by the pro- visions of their code, to a lien upon the ship, or the proceeds, for the expenses of sending back the ship's crew to their own country. An ItaUan ship was brought into a British port by salvors. A salvage action having been instituted, the ship was sold by order of the court, and a sum was awarded out of the proceeds to the salvors. After payment of that sum, and the costs of the plaintiffs, a balance of 60Z. 10«. ^d. remained in court. The defendants' solicitors had incurred expenses in pumping the ship, paying the marshal's possession fees, &c., and claimed a charging order upon the sum in court for such ex- penses, and sought payment out of such balance to them. The Italian Government, through their consul in this country, had sent home the crew of the ship, and had incurred expenses by so doing. By Italian law such last-mentioned expenses are a lien upon the ship. The Italian consul opposed payment out to the defendants' solicitors, and claimed priority for the lien of the Italian Government : — -Held, that the Italian Government was entitled to such priority. The Zivietta, 8 P. D. 209 ; 52 L. J., P. 81 ; 49 L. T. 4U ; 5 Asp. M. C. 151— Hanuen, P. Wag«s — Action for — Vice-Admiralty Juris- diction.] — See Tlie Ferret, post, col. 1721. "Dispute as to Liability'' — Counter- claim. ] — A counterclaim in respect of a separate cause of action is not " a reasonable dispute as to liability " within the meaning of s. 4, sub-s. 4, of the Merchant Seamen (Payment of Wages) Act, 1880. Delaroquey. Oxenholme Steamship Compawy, 1 C. & B. 122— Stephen, J. Priority of Claims.] — The owners of a vessel who have recovered judgment against another ship in an action for damage by collision have a prior right against the proceeds of such ship to seamen who have recovered judgment against the same ship for wages earned before and after the collision. The Elin, 8 P. D. 129 ; 52 L. J., P. 55 '49 L. T. 87 ; 31 W. E. 736 ; 5 Asp. M. C. 120—0. A. Mariners have priority for wages over persons with a possessory common law lien up to the time of the beginning of such lien, and they are entitled to subsistence money from the time they leave the ship to the time they return home ; this and the expenses of the journey home, and the costs of the action, lank with their prior wages. The Immacolata ConeezioTie, 9 P. D. 37 ; 53 L. J., P. 19 ; 50 L. T. 539 ; 32 W. B. 705 ; 5 Asp. M. 0. 208— Butt, J. The lien of seamen for wages ranks before a claim in respect of payments for the towage of the ship from sea to an inland port, and the light dues and dock dues. The Andalina, 12 P. D. 1 ; 56 L. T. 171 ; 35 W. K. 336 ; 6 Asp. M. C. 62— Butt, J. Lien for — Foreign-going Ship — Voyage not Proceeded upon.] — ^Seamen engaged by the owners or their agent for a voyage upon a foreign-going ship, which does not proceed upon the voyage, are entitled to a lien for their wages upon the ship, and the proceeds of sale thereof, although the engagement of the seamen has not been in writing. Great Eastern Steamship Company, In re, Williams' Clavm, 53 L. T. 594 ; 5 Asp. M. 0. 511- Ghitty, J. Lien on Freight — Sub-Charter.]— Seamen have a maritime lien on freight due from sub- charterers to the charterers of a ship, and can arrest the cargo for the purpose of enforcing such lien. The Andalina, supra. Agreement for Service — Breach by Shipowner — Damages.] — In an action by a seaman for breach of the stipulations in his agreement for service, the court, in addition to the compensa- tion provided by the Merchant Shipping Act, 1854, can award general damages for breach of the agreement, and for hardships incurred by the seaman through the vessel being employed for purposes other than those contemplated by the agreement. The Jiistitia, 12 P. D. 145 ; 56 L. J., P. Ill ; 57 L. T. 816 ; 6 Asp. M. C. 198— Hannen, P. Supplying, without Licence — Evidence — Onus of Proof of Licence on Defendant.]— A defendant having been charged under the 147th section of the Merchant Shipping Act, 1854, with supplying a seaman to a merchant ship in the United Kingdom, he not being a person holding a licence from the Board of Trade for that purpose : — Held, on a case stated, that proof having been given of the sup- ply of the seaman by the defendant, the onus of proving that he held a licence from the Board of Trade rested with him. Reg. v. Johnston, 65 1657 SHIPPING— Saie and Mortgage— Bills of Lading. 1658 L. T. 265 ; 51 J. P. 22 ; 16 Cox, C. C. 221 ; 6 Asp. M. C. 14— D. Refusal to give Certificate of Discharge — Penalty.] — An action will not lie for the refusal to give to a seaman the certificate of discharge directed to be given by the 172nd section of the Merchant Shipping Act, 1854, the only remedy for such refusal being the penalty provided by that section. Vallance v. Falle, 13 Q. B. D. 109 ; 53 L. J., Q. B. 459 ; 51 L. T. 158 ; 32 W. E. 769 ; 48 J. P. 519 ; 5 Asp. M. C. 280— D. y. SALE AND KOBTGAGE. 1. SALE. Sale by Court — At instance of Fart Owners.] See The Marion, ante, col. 1648. Sale of Ships by Court.]- See post, XVIII. 8. 2. MORTGAGE. Action to Bealise Security — Costs — material Hen.] — Where a mortgagee brings an action to realise his security, and material men with a common law possessory lieu on the ship inter- vene, and the ship, by order of the court, is sold, and the proceeds are only sufficient to satisfy the claim of the material men, the mortgagee is still entitled to be paid his taxed costs, up to the date of the sale, out of the proceeds of the sale of the ship in priority to the material men. Tlie Sherbro, 52 L. J., P. 28 ; 48 L. T. 767 ; 5 Asp. M. C. 88— Sir K. Phillimore. Mortgagee in Possession — Bight to Freight.] — In October, 1883, W. mortgaged to the plain- tiffs certain shares in a ship. Subsequently W., who was captain and ship's husband of the ship, incurred liabilities to the defendants for goods supplied to and disbursements made for the ship. In March, 1886, the ship was chartered for a voyage from Montreal to Liverpool, the freight being payable one-third at Quebec and two- thirds on right delivery of the cargo in Liver- pool. Immediately upon arrival of the ship in Liverpool, the plaintiffs took possession and gave notice to the owners of the cargo to pay the freight to them. The defendants afterwards obtained judgment against W., and obtained garnishee orders upon the receivers of the cargo attaching the freight due from them : — Held, that the defendants had no right to the freight as against the plaintiffs. Japp v. Cctmplell, -57 L. J., Q. B. 79— A. L. Smith, J. Arrest — Eelease of Ship.] — Where the regis- tered mortgagees of a ship instituted an action in rem as mortgagees for possession, and the ship was arrested therein before the mortgage money became due, and without any default on the part of the mortgagor, the court, being of opinion upon the fact that the ship was not being dealt with so as to impair the mortgagee's security, ordered her release. The Bla/nche, 58 L. T. 592 ; 6 Asp. M. C. 272— Butt, J. Fishing Boats — ITets not "Appurtenances,"] — In a case where certain fishing boats had been mortgaged by the bankrupts, and the mortgagees laid claim to the nets and the fishing gear which had been used on board the said vessels (but of which no particular nets were appropriated to or specially belonging to any particular vessel) on the ground that such nets and fishing gear came within the word " ship "in s. 72 of the Merchant Shipping Act, 1854, and the word " appurte- nances " in the form of mortgage of a ship now in use and substituted for Form I. given in the Merchant Shipping Act, 1854 : — Held, that in order to make a thing an appurtenance it must be specified ; that in the present case there was no evidence to show that any specific nets were appropriated to any particular ship, but that they were used indiscriminately, and that they could not in consequence be considered " appurte- nances " within the meaning of the act. Gould, Ex parte, Salmon, In re, 2 M. B. E. 137 — D. master taking Kan in Possession to Sea — Wages.] — See Tlie Fairport, ante, col. 1654. Mortgage Action — Charge by Managing Owner — Appointment of Beceiver — Bights of Co-owners.] — In an action in personam by a plaintiff claiming to be equitable mortgagee of the foreign ship F. and her freight, to secure a liability incurred by him in accepting bills of exchange which had been drawn by the managing owner, it appeared that the alleged mortgage was given to the plaintiff by the managing owner ; that the plaintiff, when he accepted the bills, thought the managing owner was sole owner, and that it was subsequently sworn on affidavit that the managing owner was only a part owner, but it did not appear whether the amount of the bills was in fact expended on the purposes of the ship. The F. was in an English port under charter to carry cargo to a foreign port, when, on application by the plaintiff, an order was made appointing a receiver and authorising him to proceed with the ship to the foreign port and there receive the ship and all the freight due upon the voyage. The defen- dants appealed : — Held, that, even assuming the managing owner to be only a part owner, yet that, as it did not appear that the amount of the bUls was not expended solely for the purposes of the ship, the court had authority to appoint a receiver to receive the whole of the freight, and that, in the circumstances, it was expedient that the order should stand. Burn v. Serlofson, or Tlie Faust, 56 L. T. 722 ; 6 Asp. M. C. 126— C. A. Assignment of Ship or Vessel — Dumb Barge — Bill of Sale.] — A dumb barge, propelled by oars, plying on the Eiver Thames and carrying goods, wares, and merchandise (without passengers) is a vessel within the exception of the Bills of Sale Acts, 1878 and 1882, which excepts from registra- tion as a bill of sale transfers or assignments of a ship or vessel or any share thereof. Gapp v. Bond, 18 Q. B. D. 200 ; 56 L. J., Q. B. 438 ; 57 L. T. 437 : 35 W. R. 683— C. A. VI. BILLS OF LADING. 1. FORM OF. Date of Shipment wrongly stated— Liability of Master — ^Authority of Ship's Brokers.] — Ship's brokers at a foreign port have not, as 1659 SRIPVING— Bills of Lading. 1660 such, authority to relieve the captain fronj the duty of seeing to the accuracy of statements contained in bills of lading which they present to him for signature. Stumore v. Breen, 12 App. Cas. 698 ; 56 L. J., Q. B. ■101— H. L. (E.) " Shipped on Board " — Goods Ploated to Ship.] — Timber sleepers wore floated alongside a vessel on rafts and there delivered to the mate, who gave a receipt for them : — Held, that the goods were not " shipped on board" within the meaning of a bill of lading. Thorman v. JSm-t, 1 0. & B. 596— Grove, J. 2. EFFECT OF. Shipowner Estopped from denying that Contract made with him. ] — ^A company owned a line of steamers called the " Monarch Line," running between New York and London. A. was in the habit of shipping goods on steamers running on this line. A. shipped goods on a steamer at New York and received a bill of lading made out in the ordinary form given by the company for goods shipped on their steamers, save that it had the words "extra steamer" added after the words " Monarch Line of Steam- ships." At London an overside release for the goods was signed and given by the company's agent to A., and the freight received by them from A. : — Held, in an action by A. against the company for non-delivery of the goods that the company were estopped from saying that the contract of shipment was not made with them. Herman v. Royal Exchange Shipping Company, 1 C. & B. 413— Huddleston, B. Affirmed in C. A. Beading with Charterparty.] — See post, col. 1665. Whether conclusive as to amount Shipped.] — A charterparty provided that the bill of lading should be conclusive evidence against the owners of the quantity of cargo received. The cargo (timber) was floated alongside the vessel, and receipts by the mate were then given for the same. Part of the cargo was lost by perils of the sea before shipment. The loss was notified by the master to the agent of the charterer, but, at the latter's request, the master was induced to sign bills of lading for the whole quantity received alongside : — Held, that the charterer had no claim against the shipowners in respect of the difference between the amount of cargo received alongside, and the amount shipped on board. Pyman v. Burt, 1 C. & E. 207 — Hawkins, J. The defendants chartered the plaintiff's ship for the carriage of a cargo of timber from Memel. The charterparty provided that the ship should there load from the agents of the said affreighters as customary a full cargo of fir sleepers, that the cargo should be brought to and taken from alongside the ship at merchants' risk and expense, and that the bill of lading should be conclusive evidence against the owners of the quantity of cargo received as stated therein. There was a custom at Memel, which, however, did not apply to charterparties in the form of the above- mentioned charterparty, that the captain should take delivery of the timber to be shipped at timber ponds up the river at some distance from the ship, the timber being then rafted down by fishermen to the ship, but being at the ship- owner's risk during the process. The captain of the plaintiff's ship, on her arrival at Memel, not being aware of the provisions of the charter- party, allowed the mate to give receipts for the cargo at the timber ponds. Part of the timber included in such receipts was lost during the process of rafting the timber down to the ship, owing to the force of the current. The captain, having become aware of such loss and of the provisions of the charterparty, stated to the agent at Memel of the shippers, who had sold the timber to the defendants, that he did not see his way to signing clean bills of lading for the full quantity mentioned in the mate's receipt, a por- tion of the timber having been lost ; but, on being told by such agent and a clerk of the ship's brokers that he was bound to sign clean bills of lading for the full quantity, he did so. The bills of lading stated that such quantity was shipped in good order and well conditioned to be delivered on payment of freight and all other conditions as per charterparty. In an action for balance of chartered freight the defendants counterclaimed in respect of short delivery of cargo : — Held, that the bills of lading estopped the plaintiff from denying that the full amount of cargo stated therein was shipped. Lisliman v. Christie, 19 Q. B. D. 333 ; 56 L. X, Q. B. 538 ; 57 L. T. 552 ; 35 W. E. 7i4 ; 6 Asp. M. G. 186—0. A. Siguatare of Uaster' s Agent.] — To an action for freight by a shipowner against the indorsees of the bill of lading, the defendants counter- claimed in respect of short delivery. All the goods that were actually put on board had been delivered to them ; but the bill of lading ac- knowledged the receipt of a larger quantity. All the goods mentioned in the bill of lading had been floated alongside the ship in rafts, and mate's receipts given for them ; but some of them were lost before they were shipped. The bill of lading was signed, " By authority of the captain, Wilh. Ganswindt as agent." Ganswindt was the ship's broker at the shipping port : — Held, that apart from the Bills of Lading Act, a bill of lading is not conclusive against a shipowner, and he is not liable in respect of any goods not actually shipped ; and that in the present case, he was not liable under that act, as the bill of lading was not signed by or for him. Thorman V. Burt, 54 L. T. 349 ; 5 Asp. M. C. 563— C. A. 3. EXCEPTIONS FROM LIABILITY. Perils of the Sea— Evidence to vary Terms — Deviation.] — The plaintiffs having purchased goods to be shipped from a foreign port on the terms that payment of the price was to be made- in exchange for shipping documents, the bill of lading signed upon the shipment of the goods was, upon payment of the price, indorsed to them. The bill of lading, which contained the usual exception of sea perils, stated that the goods were- shipped for delivery at Dunkirk on board a vessel lying at Fiume and bound for Dunkirk, with liberty to call at any ports in any order. The ship, instead of proceeding direct for Dunkirk,, sailed for Glasgow, and was lost, with her cargOr off the mouth of the Clyde, by perils of the sea. In an action brought by the plaintiffs against the shipowners for non-delivery of the goods, evidence was given to show that the shippers of the goods, at the time when the bill of lading 1661 SHIPPING— BiZZs of Lading. 1662 was given, knew that the vessel was intended to proceed via Glasgow : — Held, that such evidence was not admissible to vary the terms of the bill of lading, which imported a voyage direct from Fiume to Dunldrk, subject to the liberty to call at any ports of call substantially within the course of such voyage ; that Glasgow, being altogether out of the course of such voyage, was not such a port ; and that the vessel was therefore lost while deviating from the voyage contracted for, and the excepted perils clause did not exonerate the defendants from liability in respect of non-delivery of the goods. Leduc V. Ward, 20 Q. B. D. 475 ; 57 L. J., Q. B. 379 ; 58 L. T. 908 ; 36 W. K. 537— C. A. Collision — ITegligence.] — Foundering caused by collision with another vessel is within the exception " dangers and accidents of the sea " in a bill of lading ; and excuses the shipowner for non-delivery of the goods if it occurs with- out fault in the carrying ship. Woodley v. Michell (11 Q. B. D. "17) overruled. Wilson v. The Xantho, 12 App. Cas. 503 ; 56 L. J., P. 116 ; 57 L. T. 701 ; 36 W. K. 353 ; 6 Asp. M. C. 207 — H. L. (E.). Exceptions limiting Implied Warranty of Seaworthiness. ] — A steamship which had broken her main shaft was salved by another steamship belonging to the same line. The breakdown was caused by a latent defect in the shaft without negligence on the part of the owners or their servants. In a salvage action brought by the owners, master, and crew of the salving ship s^inst the owners of cargo on board the salved ship : — Held, first, that the ship was unsea worthy when she started on the voyage. Secondly, that the implied warranty of seaworthiness in the bill of lading was an absolute warranty that the ship should be reasonably fit to perform the voyage, and not merely that the shipowner would do his best to make her so. Thirdly, that the exceptions in the bill of lading, " all and every the dangers and accidents of the seas, rivers, and canal, and of navigation of whatever nature or kind," had not the efEect of limiting the warranty of seaworthiness, but that such excep- tions only protected the shipowner fi-om liability to the owners of cargo for loss or damage sus- tained by the latter through "danger or acci- dents" happening to a seaworthy vessel. The Glen/ruin, 10 P. D. 103 ; 54 L. J., P. 49 ; 52 L. T. 769 ; 33 W. E. 826 : 5 Asp. M. C. 413- Butt, J. A steamship became disabled at sea owing to the breaking of her fly-wheel shaft, through a flaw in the welding existing at the commence- ment of the voyage, but not discoverable by the exercise of any reasonable care. The cargo on board her was shipped under three bills of lading, the first of which contained, amongst other ex- cepted perils, the clause : — " warranted seaworthy only so far as ordinary care can provide ; " the second : " warranted seaworthy only as far as due care in the appointment or selection of agents, superintendents, pilots, masters, oflicers, engineers, and crew can ensure it ; " and the third : " owners not to be liable for loss, deten- tion, or damage ... if arising directly or in- directly . . . from latent defects in boilers, machinery, or any part of the vessel in which steam is used, even existing at the time of ship- ment, provided all reasonable means have been taken to secure efficiency." A vessel belonging to the same owners towed the disabled vessel to a place of safety. In an action of salvage brought by the owners, master and crew of the salving vessel against the owners of cargo in the salved vessel : — Held, that the owners of the cargo had no remedy for breach of the contract of carriage, for the exceptions in the bills of lading were such as to constitute a limited warranty of seaworthi- ness at the commencement of the voyage, which limited warranty had been complied with by the shipowners. Cargo ex Laertes, 12 P. D. 187 ; 56 L. J., P. 108 ; 57 L. T. 502 ; 36 W. E. Ill ; 6 Asp. M. C. 174— Butt, J. Cattle— limit of Value. J— The plaintiff shipped certain cattle on board the defendant's ship for carriage from London to New York under a bill of lading which provided as follows : — " These animals being in sole charge of shipper's servants, it is hereby expressly agreed that the shipowners, or their agents or servants, are, as respects these animals, in no way responsible either for their escape from the steamer or for accidents, disease, or mortality, and that under no circumstances shall they be held liable for more than 51. for each of the animals." The ship had on her previous voyage carried cattle suffering from foot and mouth disease. Some of the cattle shipped under the bill of lading were during the voyage infected with that disease, owing to the negligence of the defendants' servants in not cleansing and disinfecting the ship before receiving the plaintifi's cattle on board and signing the bill of lading, and the plaintiflE in consequence suffered damage amount- ing to more than 51. for each of the said cattle : — Held, that the provision in the bill of lading limiting liability to hi. for each of the cattle did not apply to damage occasioned by the defen- dants not providing a ship reasonably fit for the purposes of the carriage of the cattle which they had contracted to carry. Tattersall v. National Steamship Company, 12 Q. B. D. 297 ; 53 L. J., Q. B. 332 ; 50 L. T. 299 ; 32 W. E. 566 ; 5 Asp. M. C. 206— D. 4. EIGHTS AND LIABILITIES OF INDOESEES. "Passing of Property" in Goods — Indorse- ment by way of Pledge.] — The mere indorse- ment and delivery of a bill of lading by way of pledge for a loan does not pass " the property in the goods " to the indorsee, so as to transfer to him all liabilities in respect of the goods within the meaning of the Bills of Lading Act (18 i 19 Vict. c. Ill), s. 1. Sewell v. Burdich, 10 App. Cas. 74 ; 54 L. J., Q. B. 156 ; 52 L. T. 445 ; 33 W. E. 461 ; 5 Asp. M. C. 376— H. L. (E.). Goods were shipped to a foreign port under bills of lading making the goods deliverable to the shipper or assigns. After the goods had arrived, and been warehoused, the shipper in- dorsed the bills of lading in blank and deposited them with the indorsees as security for a loan. The indorsees never took possession of or dealt with the goods : — Held, that "the property" in the goods did not " pass " to the indorsees within the meaning of the Bills of Lading Actso as to make them liable in an action by the shipowner for the freight. lb. 1663 SRlPPmQ—Charterparty.. 1664 Liability for demurrage under a bill of lading is imposed on the holder by way of security only who presented the bill and demanded the delivery. Allen v. Ooltart, 11 Q. B. D. 782 ; 52 L. J., Q. B. 686 ; 48 L. T. 944 ; 31 W. K. 841 ; 5 Asp. M. C. 104— Cave, J. Action against Shipowner — Qnality Marks — Bepresentation — Estoppel — Authority of Master.] — A bill of lading signed by the captain of a ship in respect of a shipment of bales of jute contained the following provision : — " If quality marks are used, they are to be of the same size as the leading marks and contiguous thereto, and, if such quality marks are inserted in the shipping notes and the goods are accepted by the mate, bills of lading in conformity there- with shall be signed by the captain, and the ship shall be responsible for the correct delivery of the goods." The bill of lading described the bales as marked in proportions specified with different quality marks, indicating different qualities of jute, which marks corresponded with those inserted in the shipping notes made out by the shippers. When the ship was discharged, however, it was found that there had in fact been shipped fewer bales marked with one of such quality marks and more marked with another of such marks indicating an inferior quality than stated in the bill of lading : — Held, on the above facts, that an indorsee of the bill of lading for value, without notice of the in- correctness of the description of the marks there- in, had no right of action against the shipowners either for breach of contract or upon the ground that they were estopped by the representation contained in the bill of lading. Grfint v. Norway (10 C. B. 665) followed. Cox v. Bruce, 18 Q. B. D. 147 ; 56 L. J., Q. B. 121 ; 57 L. T. 128 ; 35 W. E. 207 ; 6 Asp. M. C. 152— C. A. 5. SBNDINa WITH BILLS OF EXCHANGE. Duties arising from.] — See ante, col. 1581. VII. CHARTESPAETY. 1. STAMPING. Executed Abroad — Evidence.] — A charter- party executed entirely abroad, and stamped within two months after it has been received in this country, can be received in evidence, since it falls within the provisions of 33 & 34 Vict. c. 97, s. 15, and not of ss. 67 & 68 of that act. The Belfort, 9 P. D. 215 ; 53 L. J., P. 88 ; 51 L. T. 271 ; 33 W. E. 171 ; 5 Asp. M. C. 291— D. 2. THE CONTRACT. Passengers, right to Carry — Custom.] — A charterparty, not amounting to a demise of the ship, provided for the carriage of a full and com- plete cargo of lawful produce and merchandise for payment of a lump freight, but was silent as to the use to which the passengers' cabins might be put : — Held, that the charterers were not entitled to carry passengers in the cabins. Shaw V. Aithen, 1 C. & B. 195 — Denman, J. No custom exists entitling the charterer under the above circumstances to carry passengers, or entitling the shipowner to have passengers car- ried for his benefit. 11. Deck Cargo jettisoned — "At Merchant's Bisk."] — It was stipulated in a charterparty that the " ship should be provided with a deck cargo, if required, at full freight, but at merchant's risk : "— Held, that the words " at merchant's risk " did not exclude the right of the charterers to general average contribution from the shipowners in respect of deck cargo shipped by the charterers, and necessarily jetti- soned to save the ship and the rest of the cargo. Burtori, v. English, 12 Q. B. D. 218 ; 53 L. J., Q. B. 133 ; 49 L. T. 768 ; 32 W. R. 655 ; 5 Asp. M. C. 187— C. A. Quantity of Cargo — " About."] — Under a charterparty providing that the ship shall load empty petroleum barrels, as many as may be re- quired by the master, say about 5,000 ; the word " about " entitles the master to require at his option the shipment of 10 per cent, more or less than the amount specified. Aleock v. Leemu, 1 C. & E. 98— Mathew, J. Cargo to be loaded from Shore "at Ship's Bisk " — Loss after delivery and before loading.] By a charterparty a vessel was to proceed to a port, and there to load a cargo from the shore by the ship's boats and crew at ship's risk and expense. A part of the cargo was lost, after delivery from the shore and before it was loaded on board, through one of the perils enumerated in the exceptions in the charterparty. In an action by the charterer for the non-delivery of this part of the cargo : — Held, that the expres- sion " at ship's risk " did not mean at the absolute risk of the shipowner, but at such risk as would attach if the goods were loaded on board, and that consequently the exceptions applied, and the shipowner was not liable for the non-delivery. Motteiolin v. Michter, 18 Q. B. D. 63 ; 56 L. J., Q. B. 33 ; 35 W. E. 300— 0. A. Loss of Vessel after Expiration — Liability of Charterer — Act of God.] — A vessel was lost, through stress of weather and without negli- gence, after the expiration of a charterparty : — Held, in an action by the representative of the owner against the charterer, in the absence of express stipulation, that there was no liability implied by law on the part of the person in possession for loss so occasioned. Smith v. Drummond, 1 C. & E. 160 — Gave, J. Option to Cancel — "Excepted Dangers."]- By a charterparty of a steamship it was agreed that she should go to " three safe loading places " between two named ports, and there load from the charterers a cargo of oranges, and being so loaded proceed to London .... and deliver the same pursuant to bills of lading .... (the act of God .... and all dangers of the seas, rivers, and steam navigation of what nature and kind soever during the said voyage, always excepted), and the charterers thereby promised to load the cargo, and stipulated, after a provision for work- ing and lay days, that " should the steamer not be arrived at first loading port free of pratique, and ready to load on or before the 15th of 1665 SHIPPING— Charterparty. 1666 December next, chaxterers liave the option of cancelling or confirming this charterparfy." — By dangers of the seas, the steamer, although arrived at the first loading port, was not free of pratique and ready to load on the 15th of December, and the charterers therefore cancelled the charter- party. — ^At the trial of an action against them for not loading the cargo, the judge left to the jury the disputed question whether the port was a " safe loading place," and they found in the affirmative : — Held, that the excepted dangers clause applied only to the voyage and not to the clause giving the option to cancel the charter- party if the ship was not ready to load on the day fixed, and therefore the cancellation was justified. Smith v. Dart, U Q. B. D. 105 ; 54 L. J., Q. B. 121 ; 52 L. T. 218 ; 33 W. K. 455 ; 5 Asp. M. C. 360— D. "Eeady to Load."] — A charterparty provided, that should the steamer not be ready to load on or before the 31st May, 1882, the charterer should have the option of cancelling the charter. On that day the vessel had dis- charged two holds only of its outward cargo, and was not completely discharged till the middle of the following day : — Held, that the charterers 'were entitled to cancel the charter. Groves v. Volkart, 1 0. & B. 309— Lopes, J. Affirmed in C. A. Cesser Clause — Incorporation of Conditions of Charterparty in Bill of Lading.] — ^A charter- party contained stipulations in the usual form for payment of freight and demurrage, and also a stipulation that " as this charterparty is entered into by the charterers on account of another party, their liability ceases as soon as the cargo is on board, the vessel holding a lien upon the cargo for freight and demurrage." The char- terers having placed the cargo on board at the port of loading, a bill of lading was signed whereby the goods were made deliverable to themselves at the port of discharge, " they pay- ing freight, and all other conditions as per charterparty." In an action by the shipowner against them as consignees of the cargo, for demurrage in respect of delay at the port of discharge : — Held, that the cesser clause in the charterparty must be rejected as inapplicable in reading the bUl of lading, which incorporated all the conditions of the charterparty applicable to the reception of the goods at the port of dis- charge, and, therefore, that the plaintiff was entitled to maintain the action. Gullisclien v. Stewart, 13 Q. B. D. 317 ; 53 L. J., Q. B. 173 ; 50 L. T. 47 ; 32 W. E. 763 ; 5 Asp. M. C. 200— C.A. A clause in a charterparty providing for the cesser of the charterer's liability on the goods being loaded, does not absolve the charterer, if he be also the indorsee and holder of a bill of lading, incorporating the conditions of the char- terparty, from liability for damage incurred at an intermediate port. Bryden v. NieTmlir, 1 C. & E. 241— Stephen, J. BUI of Lading differing from Terms of Char- terparty.] — The plaintiflEs chartered the defen- dant's ship for carriage of a cargo of cotton-seed from Alexandria to the United Kingdom. The charterparty provided that the master was to sign bills of lading at any rate of freight and as customary at port of lading without prejudice to the stipulation of the charterparty. There was also a cesser of liability clause. A cargo was shipped under the charterparty at Alexandria by and on account of the charterers, and a bill of lading was given containing an exception, which was not in the charterparty, protecting the shipowners from liability for damage arising from any act, neglect, or default of the pilot, master, or mariners. The cargo was lost by the negligence of the master. In an action for non- delivery of the cargo, the jury found that there was no special custom at Alexandria with regard to the form of biU of lading in use there : — Held, that, whether such finding were right or wrong, the terms of the charterparty did not authorise the giving of a bill of lading con- taining the before-mentioned exception ; and that, even if they did, in the absence of express provision to the contrary, as between the ship- owners and the charterers only the charterparty could be regarded as constituting the contract, and the bill of lading must be looked on as a mere receipt for the goods ; and consequently that the defendants were liable for non-delivery of the cargo. Rodocanaclii v. Milhnm, 18 Q. B. D. 67 ; 56 L. J., Q. B. 202 ; 56 L. T. 594 ; 35 W. R. 241 ; 6 Asp. M. C. 100— C. A. See Gard- ner V. TreeJimiann, post, col. 1675. By what Law governed — Law of the Flag — " Lex loci contractus."] — A claim was made by an American citizen in the winding-up of a British steamship company for damages for the loss of his cattle arising through the negligence of the master and crew. The ship in which the cattle were carried was a British ship trading between Boston and Liverpool. The charterparty con- tained express stipulations exempting the com- pany from liability caused by the negligence of the master and crew. The cattle were shipped at Boston, and bills of lading were given there, in conformity with the contract. The ship stranded on the coast of North Wales, owing, as was admitted, to the negligence of the master and crew. According to the law of the State of Massachusetts, as at present ascertained, the stipulations exempting the owners from liability through negligent navigation were void ; but according to English law such stipulations were good, and were usually inserted in English bills of lading. The question was whether the law of the flag (that is to say, the personal law of the shipowner) or the lex loci contractus should govern the contract of affreightment : — Held, on the authority of Lloyd v. Guibert (1 L. E., Q. B. 115), that the stipulations were valid, first on the general ground that the contract was governed by the law of the flag ; and, secondly, on the particular ground that from the special provi- sions of the contract itself it appeared that the parties were contracting with a view to the law of England. Missouri Steamship Company, Mon/roe's Claim, In re, 58 L. T. 377; 6 Asp. M. C. 264— Chitty, J. Affirmed 37 W. E. 696— C. A. " Beady Quay Berth as ordered by Char- terer."] — By a charterparty it was agreed that the plaintiff's vessel after loading a certain cargo should proceed to "London or Tyne dock to such ready quay berth as ordered by the char- terers," " demurrage to be at the rate of 30Z. per running day," in no case unless in berth before noon were the lay days to count before the day following that on which the vessel was in berth. 1667 SHIPPING— Corgro. 1668 and the captain or owners were to have an abso- lute lien on the cargo for all freight and demur- rage in respect thereof. The vessel was ordered by the charterers to a certain London dock, but when the vessel arrived at such dock there was no quay berth ready for her, and she was conse- quently detained one day beyond the time required for discharging her, had she been able to have got alongside a quay berth on her arrival in the dock : — Held, on the construction of this charterparty, that the charterers were bound to name such quay berth as was ready, and that for the detention caused by the charterers neglect- ing to do so the plaintifis were entitled to a lien on the cargo for demurrage, the damage for the detention being sufficiently in the nature of de- murrage to come within the demurrage clause. Harris v. Marcus Jaeols, 15 Q. B. D. 247 ; 54 L. J., Q. B. 492 ; 54 L. T. 61; 5 Asp. M. C. 530— — C.A, '■ So near thereto as she may safely get at all times of Tide and always Afloat."]— A ship was chartered to unload at S. or "as near thereto as she might safely get at all times of tide and always afloat," and for delay in unloading the charterers were to pay demurrage. The state of the tide prevented the ship from reaching S. for four days after she arrived at the nearest point where she was able to float : — Held, that, accord- ing to the terms of the charterparty, this was a sufficient arrival of the ship at S. to found a claim for demurrage. Sorsley v. Price, 11 Q. B. D. 244 ; 52 L. J., Q. B. 603 ; 49 L. T. 101 ; 31 W. B. 786 ; 5 Asp. M. C. 106— North, J. "If sufficient Water."] — A condition in a charterparty that the ship shall " discharge in a dock as ordered on arriving, if sufficient water, or so near thereunto as she may safely get, always afloat," means that she is to discharge in the dock ordered, if there is sufficient water at the time of giving the order. Allen v. Coltart, 11 Q. B. D. 782 ; 52 L. J., Q. B. 686 ; 48 L. T. 944 ; 31 W. R. 841; 5 Asp. M. C. 104— Cave, J. Blockade of Port of loading — Delivery elsewhere.] — Under a, charterparty that a ship should proceed to Taganrog, or " so near thereto as she may safely get," and there deliver cargo : — Held, that this port being under blockade, it was not a fulfilment of the contract for the vessel to discharge at Constantinople, even though that might be a reasonable course to adopt. Castel v. Trechman, 1 C. & E. 276— Stephen, J. 3. EXEMPTIONS FROM LIABILITY. "Dangers and Accidents of Navigation."] — A charterparty provided that the ship should load a cargo of coal and deliver the same at the port of discharge at a freight of so much per ton on the quantity delivered (the act of God, &c., and all and every other dangers and accidents of the seas, rivers, and navigation always excepted), the freight to be paid two- thirds in cash ten days after the vessel's sailing, and the remainder in cash on the right and true delivery of the cargo agreeably to bills of lading, less cost of coal delivered short of bill of lading quantity : — Held, that a collision attributable solely to the negligence of those in charge of the other vessel was a " danger or accident of navi- gation " within the meaning of the charterparty and therefore that the shipowners were not liable in respect of non-delivery of part of the cargo shipped caused by such a collision ; but that the charterers were entitled nevertheless under the charterparty to set off the cost of the coal so undelivered against the balance of freight pay- able on delivery of the remainder of the cargo at the port of discharge. Woodley v. Michell (11 Q. B. D. 47) distinguished. "Garston" Sailing Ship Company v. Hicltie, 18 Q. B. D. 17 ; 56 L. J., Q. B. 38 ; 55 L. T. 879 ; 35 W. B. 33 ; 6 Asp. M. G. 71— C. A. " Dangers and Accidents of the Seas."]-— Eice was shipped under a charterparty and bills of lading which excepted "dangers and accidents of the seas." During the voyage rats gnawed a hole in a pipe on board the ship, whereby sea- water escaped and damaged the rice, with- out neglect or default on the part of the ship- owners or their servants : — Held, that the damage was within the exception, and that the shipowners were not liable. Samilton v. Pandorf, 12 App. Cas. 518 ; 57 L. J., Q. B. 24 ; 57 L. T. 726 ; 36 W. E. 369 ; 52 J. P. 196 ; 6 Asp. M. C. 212— H. L. (B.). " Dangers of the Seas and Bivers."] — Timber had been towed alongside a vessel lying in a river for shipment, and the master's receipts for the quantity delivered had been received, and owing to a rapid current and strong wind then prevailing the usual means for securing the timber proved inefficient and a large amount was lost : — Held, that the loss was a loss within the exception of a charterparty excluding all "dangers and accidents of seas and rivers." Pyman v. Burt, 1 C. & E. 207— Hawkins, J. Effect of, on Option to Cancel.] — See Smith v. Dart, ante, col. 1665. VIII. CARGO. 1. STOWAGE. Carriage of Grain— Two-deck Ship— Shifting- boards in Lower Hold — Feeders.] — A ship having two decks and loaded with a cargo of barley in bulk at a port in the Mediterranean must, upon the proper construction of s. 4, sub-s. (c), of the Merchant Shipping (Carriage of Grain) Act, 1880, and the Board of Trade Eegiilations of August, 1881, be provided with shifting- boards in the lower hold. By paragraph 4 (J) of these regulations — which directs that feeders shall be fitted to feed the grain carried in the between-decks, such' feeders to contain not less than 2 per cent, of the compartments they feed — it is intended that the feeders feeding the grain carried in the between-decks, shall con- tain not less than 2 per cent, of the grain in the compartments in the between-decks which they feed, and of the grain in the hold below which is fed by such compartments. The Mothhury, 13 P. D. 119 ; 57 L. J., P. 99 ; 59 L. T. 672 ; 37 W. E. 158— Butt, J. 2. COSTS OP DISCHARGING— DOCK CHAEGES. Failure of Cargo Owner to take Goods — Duty of Shipowner — Kotice to lighterman.] — 1669 SHIPPING— Car pay the plaintiff's costs up to the date of tender. Ih. Several Issues.] — The plaintiffs having- towed a vessel into greater comparative safety, the hawser then broke, and it was dangerous t» take her again in tow. In an action for salvage r — Held, that the plaintiffs were entitled to the general costs of the action, but not to those of a special issue as to damage to machinery on which they had f aUed. The Camellia, 9 P. D. 27 ; 53 L. J., P. 12 ; 50 L. T. 126 ; 32 W. E. 495 ; 5 Asp. M. C. 197— Hannen, P. Slight Character of Services.] — See The- Agamemnon, ante, col. 1703. Officers and Seamen — Action on Agree- ment.] — See The Nasmyth, ante, col. 1707. 9. AGEEEMBNTS AS TO TOWAGE. Validity — ^Authority of Master.] — The steam- ship W. having found the steamship A., on the 12th February, off Cape Finisterre, in a disabledf condition, towed her off in heavy weather until the 14th February, when, in consequence of the condition of the A., the master of the W. pro- posed to abandon her. However, at the request of the master of the A., it was agreed in writing that the W. should " stand by the A. as long as possible, and that the W. and owners are to be paid for the time and towing already done and to be done from the 12th Februaij, 1883." The- W. therefore again took the A. in tow, but on. the 16th February, owing to stress of weather, it. was found necessary to abandon her, after which- she was totally lost. In an action for towage: against the owners of the A., the court held that the agreement entered into by the master of the- A. was a reasonable one, and one which in his position of agent, ex necessitate for his owners,, he had an authority to enter into ; and awarded the plaiiitiffs the sum of 400Z. in respect of the services rendered prior to and after the agree- ment. Welljield (^Owners') v. Adamson, Tht Alfred, 50 L. T. 511 ; 5 Asp. M. C. 214— Butt, J. Condition Exempting f^om Liability — Negli- gence of Tug Owners or Servants.] — -The master- of a steam tug, who had contracted to tow a, fishing smack out of the harbour of Great Yar- mouth to sea on the terms that his owners should not be liable for damage arising from any negli- 1713 SKIPFING— Bottomry. 1714 geBce or default of themselves or their servants, after the towage had been in part performed, took in tow, in addition to the smack, six other vessels, and in consequence was unable to keep the fishing smack in her course, so that she went aground and was lost. By having more than six vessels in tow at once, the master of the tug disobeyed a regulation made by the harbour- master of Great Yarmouth under statutory authority. The owners of the fishing smack brought an action against the owners of the steam tug to recover damages : — Held, that the loss of the smack was occasioned by the negli- gence of the master of the tug : that the defen- dants were protected from liability by the terms of the towage contract, and that the action must be dismissed. The United Service or Cole v. Great YarmoKth Steam Tug Company, 9 P. D. 3 ; 53 L. J., P. 1 ; 49 L. T. 701 ; 32 W. K. 565 ; 5 Asp. M. C. 170— C. A. Implied Agreement.] — A tug while towing the plaintiff's vessel came into collision with and sank her. The tug was chartered by the defen- dants, a company, to work with their own tugs, and one of the terms on which the company towed vessels was that they would not be answer- able for loss or damage to any vessel in tow of their tugs (which were specified by name) whether occasioned by the negligence of their servants or otherwise. The tug in question was not one of those specified, but the plaintiff was a director of the defendant company, and was aware of the chartering of the tug : — Held, that the plaintiff must be taken to have impliedly agreed to employ the tug on the same terms as the other tugs of the company, and that his claim was therefore barred by the condition. Th^l Tasmania, 13 P. D. 110 ; 57 L. J., P. 49 ; 59 L. T. 263 ; 6 Asp. M. C. 305— Hannen, P. EfSciency of Tug for Service.] — There is an implied obligation in a contract of towage, that the tug shall be efBoient and properly equipped for the service, and a proviso in the contract that the owners will not be responsible for the default of the master, does not release tbem from such implied obligation. Tlie XJn- damited, 11 P. D. 46 ; 55 L. J., P. 24 ; 54 L. T. 542 ; 34 W. K. 686 ; 5 Asp. M. C. 580— Butt, J. 10. LIABILITY FOR NEGLIGENCE IN TOWING. Duty of Tng and Tow.] — It is the duty of those on board the vessel in tow to give general directions to the master of the tug as to the towage. But the master of the tug should exercise his discretion as to the proper man- oeuvres to be employed, especially where he is more competent to form an opinion on this point than the master of the vessel in tow. Tlw Isea, 12 P. D. 34 ; 56 L. J., P. 47 ; 55 L. T. 779 ; 35 W. K. 382 ; 6 Asp. M. C. 63— D. Under an ordinary contract of towage, the vessel in tow has control over the tug, and is therefore liable for the wrongful acts of the latter, unless they are done so suddenly as to prevent the vessel in tow from controlling them. The Mobe, infra. It is not the duty of those in charge of a tow which is being towed with a long scope of hawser by night at sea to direct the movements of the tug — the circumstances being different to towing by day in a river. I'he Stormeooli, 53 L. T. 53 ; 5 Asp. M. C. 470— Hannen, P. Liability of Vessel in Tow for Collision.]— A tug with a vessel in tow came into collision with another vessel, which was seriously injured by the tug, but not injured by the vessel in tow. The collision might have been avoided had there' been a good look-out on the vessel in tow, and had she warned the tug that the latter was in danger of collision by continuing on her course : — Held, that the owners of the vessel in tow were liable. The Male, 13 P. D. 55 ; 57 L. J., P. 33 ; 59 L. T. 257 ; 36 W. E. 812 ; 6 Asp. M. C. 300— Hannen, P. Action in Bern against Tug — Maritime Lien.] — A steam tug under charter came into collision with the smack which she was towing, through the sole negligence of a servant of the charterers, who was in charge of the tug. The towage was on the terms that the charterers were not to be answerable for damage occasioned by the negli- gence of their servants : — Held, that an action in rem would not lie against the tug, for the maritime lien arising from collision is not abso- lute, and the owners not being personally liable for this collision, and the charterers being exempted by the terms of their contract with the plaintiff, the prim§, facie liability of the vessel was rebutted. Tlie Tkonderoga (Swa. 215) explained. The Tasmania, supra. Collision caused by Tng — Effect of Payment by Tow.] — The schooner J. M. S. having come into collision with a tug and her tow, a damage action in rem was instituted by the owners of the schooner against the tug to recover all the damages occasioned by the collision. Subse- quently to the collision the plaintiffs received from the owners of the tow a sum of money described in an agreement entered into between these parties " as an advance on account of the damages to be recovered from the owners of the tug." By the agreement it was agreed that the owners of the tow should give the plaintiffs all information and assistance necessary to bring the action to a successful issue ; that if the schooner and the tug should both be held to blame, the plaintiffs should repay any sum by which the money already paid exceeded the moiety of damages recoverable against the tug ; and that, as a basis of the arrangement, it was understood that the schooner should be found blameless for the collision. The court, having ■ found'^the tug alone to blame, held that the above payment was not such - payment by the tow in satisfaction of the damages occasioned by the collision as amounted to a settlement in discharge of the action, and was consequently no bar to the action ; and that, notwithstanding the advance paid by the tow, the plaintiffs were entitled to recover from the defendants all the damages occasioned by the collision. The Storm- coeJt, supra. XIV. BOTTOMRY. Bond — Jurisdiction of Begistrar and Mer- chants — ^Bednction of Amount.] — The validity of a respondentia bond having been admitted, it 1715 SHIPPING— ^t;era^e. 1716 was reEerred to the registrar and merchants to ocks v. Bender- son, 13 App. Cas. 595 ; 58 L. J., Q. B. 152 ; 59 L. T. 697 ; 37 W. E. 449— H. L. (E.). ' Barge Propelled hy Oars only — "Vessel."] — A " dumb barge," a river craft which is simply propelled by means of oars, and having no rigging or other equipment, is not a " vessel " within the meaning of ss. 100 and 101 of the London and St, Kaj;harine Docks Act, 1864 (27 & 28 Vict. c. -clxxviii), notwithstanding the definition of the word " vessel " in the interpretation plause (s. 3) of the Harbours, Docks and Piers Clauses Act, 1847, 10 Vict, c, 27, and consequently , the owner is not liable to a penalty for allowing her to remain in the docks regulated by the former a,ct without any person on board. Hedges- v. London anA St. Katlutrine BocTis Company, 16 ,Q. B. D. 597 ; 55 L. J., M. C. 46 ; 54 L. T. 427 ; 34 W. E..503 ; 50 J. P. 580 ; 5 Asp, M. C. 539 — D. Bating of,]— /Ss« Poor Law. Harbour Commissioners— Liability for Dam- age. ]^-fThe E., which was anchored in F. outer harbour, having to be beached in the inner harbour, , S.,. .the harbour-master, directed the master of file E. where to beach her. . Before the E. left the outer harbour, S. came on board, although a Trinity House pilot was in the vessel, and- when she had arrived near the place where she was to be beached gave directions as to the lowering of her anchor. The E. overran her anchor and^^grounded on. it, sustaining damage. In an :action against the harbour commissioners 1718 and S., the court found as a fact that there was negligence on the part of S., and that the place where the E. grounded was oiitside the jurisdic- tion of the harbour commissioners : — Held, that the duties of the harbour-master comprised dii'eotions as to the mooring and beaching of vessels ; that by giving directions when he went on board, S. had resumed his functions as harbour-master, and that he and the commis^ sionei'S were therefore liable for the damage done to the E. The Rlwsina, or Edwards v. Falmonth Harbour Commissioners, 10 P. D. 131 ; 54 L. J., P. 72 ; 53 L. T. 30 ; 33 W. E. 794 ; 5 Asp. M. C. 460— C. A. By act of Parliament, 26 & 27 Vict. c. 89, the harbour of B. was vested, in the defendants, the limits were defined, and the defendants had jurisdiction over the harbour of P. and the channel of P. beyond those limits, for the pur- pose of, inter alia, buoying " the said harbour and channel," but they were not to levy dues or rates beyond the harbour of B. By 42 & 48 Vict. c. 146, a moiety of the residue of light duties to which ships entering or leaving: the harbour of P. contributed, were to be paidto the defendants, and to be applied by them in, inter alia, buoying; and lighting the harbour and channel of -P. A vessel was wrecked in the channel of Pj, which under the Wrecks Removal Act, 1877 (40 & 41 Vict. c. 16), s. 4, the defen- dants had power to, and did partially remove. The wreck not removed was not buoyed, and the plaintiff's vessel was in consequence wrepked :-^ Held, that the statutes imposed upon the defen- dants an obligation to remove the wreck from the channel, or to mark its position by buoys, and that, not having done so, they were liable iij. damages to the plaintiff. Bormont v. Furness Railway, 11 Q: B. D. 496 ; 52 L. J., Q. B. 331 ; 49 L. T. 134 ; 47 J. P. 711 ; 5 Asp. M. C. 127— Kay, J. See also Reg. v. Williams, ante, col. 337* Lighthouses — Trinity House — Beacon — Lia- bility for ITegligence.] — The Trinity House was incorporated by charter in the reign of Henry VIII., for the purpose, inter alia, of ordering and erecting lighthouses, beacons, and buoya. Its powers were extended by several charters and statutes, until it became the general light- house authority for England and Wales. By the Merchant Shipping Act, 1854, s. 389, the superintendence and management of all lights houseS) buoys, and beacons in England, and Wales, and certain other places, were,; witl^ certain exceptions, vested in the Trinity House : — Held, that the^ Trinity House was not, a de- partmsnt of State, so as to be exempt fronj. liability for negligence of its servants. Gilbert V. Trinity House Corporation, 17 Q. B. Dj 795 ; 56 L. J., Q. B. 85 ; 35 W. E. 30— D. A beacon erected by and. vested in the Trinity House, having been nearly destroyed, a stranger applied to the Trinity House, and obtained leave to remove the . rernains of it. He rejnoyed part of the remains, but left an iron stump standing up above a rock under the water. A vessel struck against the iron stump and was lost : — Held, that the Trinity House was liable. IT). Bateability to Poor-rate.] — See Poor Law. Wharves and Quays^Ixeroise of Private Eights over— flbatruction of Public Trafllc.]-.^ 1719 Sm^PFmG— Jurisdiction. 1720 By a special act of 1840 trustees were appointed for the management of a certain harbour. S. 53 of the act authorised the lord of the manor, or the owner of land situate within or adjoining to the harbour, amongst other things, to lay down railways over the quays, roads, and works, but so as all such railways should be constructed of such height and in such form as should not in any manner impede or interrupt the general public traffic of the port, or the free passage to and from the same ; and railways so to be erected or made were (subject to the aforesaid restriction) to be wholly excluded from the jurisdiction of the trustees, and be the private property and for the sole and exclusive use of the person or persons upon whose land the same should stand or be placed, and his or their assigns. The lord of the manor wasithe owner of lands adjoining the south side quay of the harbour. Tenants of the lord of the manor having proceeded to lay down two lines of railway from their works along the south side quay, an action was brought by the trustees of the harbour to restrain them from constructing such railway, on the ground that they would impede the general public traffic of the port : — Held, that the main object of the act was to benefit the persons frequenting the harbour, and that any railway laid on the south side of the quay must be constructed in such a way as not by its construction, or its natural and necessary user, in any manner to impede the fair public traffic of the port : — ^Held also, that, as the defendants' railway did so impede the traffic, the plaintiffs were entitled to an in junction, and to an order for removal of such railway. Lowther v. Oarwen, 58 L. T. 168— Kay, J. Jetty in Tidal Biver— Implied Bepre- sentation by Wharfinger.] — The defendants, who were wharfingers, agreed with the plaintiff for a consideration to allow his vessel to dis- charge and load her cargo at their wharf, which abutted upon the river Thames. It was neces- sary in order that the vessel might be unloaded that she should be moored alongside a jetty of the defendants which ran into the river, and that she should take the ground with her cargo at the ebb of the tide. The vessel at the ebb of the tide sustained injury from the uneven nature of the ground. The bed of the river at the point where she took ground was vested in the Con- servators, and the defendants had no control over it, but it was admitted that they had taken no steps to ascertain whether it was suitable for the vessel to ground upon : — Held, that there was an implied undertaking by the defen- dants that they had taken reasonable care to ascertain that the bottom of the river at the jetty was not in a condition to cause danger to the vessel, and that they were liable for the damage sustained by her. The Moorcoch, 14 P. D. 64 ; 60 L. T. 654 ; 37 W. K. 439— C. A. Affirming 58 L. J., P. 15— Butt, J. XVII. JUEISDICTIOH. . 1. ADMIRALTY DIVISION. Collision — Damage to Cargo.] — Under 24 Vict. 0. 10, fl. 7, the Admiralty Division has no juris- diction to entertain an action in rem by the owners of cargo against the vessel on which it was laden for damage done to such cargo. The Victoria, 12 P. D. 105 ; 56 L. J., P. 75 ; 56 L. T. 499 ; 35 W. E. 291 ; 6 Asp. M. C. 120— Butt, J. Action in rem — Action under lord Campbell's Act.]— The Admiralty Court Act, 1861 (24 Vict, c. 10), which by s. 7 gave the Court of Admiralty " jurisdiction over any claim for damage done by any ship," did not give jurisdiction over claims for damages for loss of life under Lord Camp- bell's Act (9 & 10 Vict. c. 93) ; and the Admiralty Division cannot entertain an action in rem for damages for loss of life under Lord Campbell's Act. Tlie Franconia (2 P. D. 163) overruled. Seward v. The Vera Cruz, 10 App. Cas. 69 ; 54 L. J., P. 9 ; 52 L. T. 474 ; 33 W. E. 477 ; 49 J. P. 324 ; 5 Asp. M. C. 386— H. L. (E.). Co-ownership — Sale of Ship — Begistered in Guernsey.] — The Admiralty Division has no jurisdiction over an action in rem, instituted under s. 8 of the Admiralty Court, 1861, claiming an account of the earnings and sale of a ship when the ship is registered at the port of Guernsey, and not at any port in England or Wales. The Rohinsons and The Satellite, 51 L. T. 905 ; 5 Asp. M. C. 338— Butt, J. 2. COUNTY COUETS. " Damage by Collision."] — Damage occasioned to an object on the bank of a river by contact with the sailing gear of a vessel afloat in the river is not " damage by collision " within s. 3, sub-s. 3, of the County Coui'ts Admiralty Jurisdiction Act, 1868 (81 & 32 Vict. c. 71^, and a county court has not Admiralty jurisdiction in respect of such damage. JRoison v. Owner of the " Kate," 21 Q. B. D. 13 ; 57 L. J., Q. B. 546 ; 59 L. T. 557 ; 36 W. E. 910— D. Actions under £50.] — The County Courts Admiralty Jurisdiction Act, 1868 (31 & 32 Vict. 0. 71), does not deprive county courts not having Admiralty jurisdiction of their original juris- diction to try actions to recover damages for injuries caused by collision between vessels where the amount claimed does not exceed 501. Seovell V. Bevan, 19 Q. B. D. 428 ; 56 L. J., Q. B. 604 ; 36 W. E. 301— D. "Use or hire of any Ship" — Demurrage.]— A loading agreement between a colliery com- pany and the charterers of a ship, by which the colliery company undertake to load the ship in a certain time, and pay demurrage if that time is exceeded, is not an " agreement made in relation to the use or hire " of a ship within s. 2 of the County Courts Admiralty Jurisdiction Amend- ment Act, 1869, and hence the county court has no jurisdiction on the Admiralty side to enter- tain a claim for demurrage against the colliery company. The Zeus, 13 P. D. 188 ; 59 L. T. 344 ; 37 W. E. 127 ; 6 Asp. M. C. 312— D. Freight— Actions under £50.] — The statutes 31 & 3a Vict. c. 71, and 32 & 33 Vict. c. 51, do not deprive county courts not having Admiralty jurisdiction, of their jurisdiction to try actions to recover freight under charterpaities, where the amount claimed is less than 50il. Reg. t. 1721 SHIPPING— Praciice. 1722 Southend County Court .TiiUge, 13 Q. B. D. 142 ; 53 L. J., Q. B. 423 ; 32 W. E. 754— D. Breach of Contract of Towag^e.] — A county court has under 32 & 33 Vict. c. 51, s. 2, sub-s. 1, jurisdiction to entertain a claim for damage for breach of a contract of towage. The Isca, 1 2 P. D. 34 ; 56 L. J., P. 47 ; 55 L. T. 779 ; 35 W. R. 382 ; 6 Asp. M. C. 63— D. Carriage of Passengers' Luggage.] — Pas- sengers' luggage carried on board a ship is not " goods " within the meaning of tlie Oounty Courts Admiralty Jurisdiction Amendment Act, 1869, and consequently the act does not confer jurisdiction to try a claim arising out of the loss of such luggage, as a court having Admiralty jurisdiction. Reg. v. City of London, Court Jiidge, 12 Q. B. D. 115 ; 53 L. J., Q. B. 28 ; 51 L. T. 197 ; 32 W. K. 291 ; 5 Asp. M. C. 283— D. 3. VICE-ADMIRALTY COURTS. Extent of.] — Vice- Admiralty Courts have not (apart from statute) more than the ordinary Admiralty jurisdiction, i. e., as it existed before 3 & 4 Vict. c. 65 enlarged it. The Vice- Admiralty Act, 1863 (26 & 27 Vict. c. 24), s. 10, sub-s. 10, does not create a maritime lien with respect to necessaries supplied within the possession. Laws V. Smith, or The Rio Tinto, 9 App. Cas. 356 ; 50 L. T. 461 ; 5 Asp. M. C. 224— P. C. Snit by Six Seamen for Wages and Compensa- tion.] — By an Order in Council, s. 15, passed in pursuance of 2 Will. 4, c. 51, the Vice-Admiralty Court has jurisdiction to entertain a suit brought by any number of seamen, not exceeding six, to recover their wages. The Merchant Shipping Act, 1854, s. 189, does not take away such right of suit so long as the total aggregate amount claimed by such seamen exceeds 501. Where, in a suit brought by six seamen in the Vice-Ad- miralty Court, the judge found that a total amount of 203i. 19«. %d. was due to them, partly for wages, and partly for wrongful dismissal, but that the amount due to each was less than 50Z. : — Held, that, under the above rule and section, the judge was wrong in dismissing the suit for want of jurisdiction, and that a decree for 203/. 19*. Si. should be made. Phillips v. Highland Railway, The Ferret, 8 App. Cas. 329 ; 52 L. J., P. C. 51 ; 48 L. T. 915 ; 31 W. R. 869 ; 5 Asp. M. C. 94— P. C. XVIII. PRACTICE. 1. WRIT AND PLEADINGS. Writ — Address — Foreign Corporation.] — A writ in personam for service within the juris- diction is invalidated by the omission of the address of the defendant. Where, therefore, such a writ was addressed to a foreign corpora- tion without giving its address: — Held, that, having regard to Ord. II. r. 3, the omission was material, and that the writ was invalid, and must be set aside. The W. A. Sholten, 13 P. D. 8 ; 57 L. J., P. 4 ; 58 L. T. 91 ; 36 W. K. 559 ; 6 Asp. M. 0. 244r-Butt J. Amendment of— Action in rem — Adding Parties,] — Plaintiffs commenced an action in rem under Lord Campbell's Act, on the 4th January, 1884, in respect of loss of life by col- lision at sea on the 10th January, 1883. After the 10th January, 1884, it having been decided in the interim that the Admiralty Court had no jurisdiction in such actions, the plaintiffs applied to add as defendants the owners of the wrong- doing ship personally :— Held, that the court had no power to add parties as defendants in personam in an action in rem, and that even if such power existed, the proceedings against the owners would be deemed to commence from the date of service on them of the writ of summons, and would be too late. T7ie Bowesfield, 51 L. T. 128 ; 5 Asp. M. C. 265— Butt, J. Pleading — Statement of Claim — Salvage.] — A statement of claim in a salvage action; was drawn in the Form No. 6 of Appendix C. to the Rules of the Supreme Court, 1883 ; on motion by the defendants under Ord. XIX. r. 7 for a further and better statement of claim or particulars : — Held, that the plaintiffs must deliver a fuller statement of claim, and that in salvage actions a fuller form than that given in Appendix C, No. 6, should generally be followed. The Isis, 8 P. D. 227 ; 53 L. J., P. 14 ; 49 L. T. 444 ; 32 W. R. 171 ; 5 Asp. M. C. 155— Hannen, P. Tender — Payment into Court.] — A plea of tender without payment into court is bad. Tlie Nasmyth, 10 P. D. 41 ; 54 L. J., P. 63 ; 52 L. T. 392 ; 33 W. R. 736 ; 5 Asp. M. C. 364— Butt, J. 2. DEFAULT PROCEEDINGS. Service of Writ in Bern.] — In an action in rem the writ of summons was served in the manner provided by Ord. IX. r. 12, no appear- ance was entered, and the action came on for judgment by default under Ord. XIII. rr. 12, 13. The affidavit of service of the writ was made by the solicitor's clerk who had served such writ : — Held, that service of a writ in rem by a solicitor or his clerk, and not by the marshal or his sub- stitute, was a valid service, and that the affidavit was sufficient. The Soils, 10 P. D. 62 ; 54 L. J., P. 52 ; 52 L. T. 440 ; 33 W. R. 659 ; 5 Asp. M. C. 368— Butt, J. The affidavit of service required to be filed in the registry before proceedings can be taken to obtain judgment by default in an action in rem must have the original writ in rem annexed to it. Tlte Eppos, 49 L. T. 604 ; 32 W. R. 154 ; 5 Asp. M. 0. 180— Hannen, P. motion for Judgment.] — ^Where the plaintiff in a, default action in rem for necessaries had complied with all the formalities entitling him to judgment save service of a statement of claim, but it appeared that the writ, though not specially indorsed, contained particulars of the claim, the court gave judgment for the plaintiff. The Hulda, 58 L. T. 29 ; 6 Asp. M. C. 244— Butt, J. In order to obtain judgment by default of appearance in an action in rem under Ord. XIII. r. 12, the ten days stated in Ord. XXI. r. 6, must elapse, and a notice of trial under 1723 SHIPPING— Practice. 1724 Ord. XXXVI. r. 11, must be filed in the registry. Tlie Avenir, 9 P. D. 84 ; 53 L. J., P. 63 ; 50 L. T. 512 ; 32 W. E; 755 ; 5 Asp. M. C. 218— Butt, J. As under Ord. XIII. r. 12, default actions in rem are to proceed as if the defendant had appeared, Ord. XXVII. r. 11, as to setting down an action on motion for judgment where the defendant makes default in pleading, applies to such actions, and judgment therein is to be obtained under the provisions of that rule. Tlie Spero Expeito, 49 L. T. 749 ; 82 W. E. 524 ; 5 Asp. M. 0. 197— Butt, J. "Where in an action in rem for collision the defendant makes default, the plaintiff should, on moving for judgment, support his claim by affidavit. lb. 3. STAY AND TEANSFEK OF PROCEEDINGS. Staying Proceedings — Lis Alilii Pendens.] — A collision occurred on the high seas between the C. and the J., two foreign vessels. The C. was arrested in Holland in an action , brought by the owners of the J. and her cargo, but was released with the consent of the agent of the J. on the guarantee of a firm of underwriters interested in the C. to answer judgment in the action. Cross proceedings were instituted in the Dutch court by the owners of the C. and the J. An action was subsequently commenced in this country against the owners of the C. by the owners of the J. and her cargo, and the C. was arrested in respect of the same collision. The plaintiffs expressed their willingness to abandon the action in Holland : — Held (dissentiente Brett, M.E.), that the proceedings in this country must be stayed and the ship released. The Chris- tiansburg, 10 P. D. 144 ; 54 L. J., P. 84 ; 53 L. T. 612 ; R Asp. M. C. 491— C. A. In an action of damage in personam by the owners of the ship G., against the owners of the ship P., it appeared that a cause of damage in rem relating to the same collision had, prior to the proceedings in this court, been instituted by the owners of the P. , against the G. in a vice- admiralty court abroad, and was then pending. The court, on the application of the owners of the ship P., stayed the proceedings in this court until after the hearing of the cause in the vice- admiralty court abroad. T!te Peshawur, 8 P. D. 32 ; 52 L. J., P. 30 ; 48 L. T. 796 ; 31 W. E. 660 ; 5 Asp. M. 0. 89— Sir E. Phillimore. where there are other questions in the action capable of being tried by a jury. Ooean Steamship Conipamj v. Anderson, 33 W. E. 536 — 0. A. 4. INSPECTION AND DISCOVEEY. Inspection by Trinity Masters before Trial.] Before the hearing of an action an application was rnade under 24 Vict. c. 10, s. 18, by the plaintiffs, that two Trinity masters should inspect the lights of the defendants' ship : — Held, that the application was premature, and ought to be refused. The Victor Covacevich, 10 P. D. 40 ; 54 L. J., P. 48 ; 52 L. T. 632 : 5 Asp. M. C. 417— Butt, J. Discovery — Bepositions made before Beceiver of Wreck.] — Depositions of the master and crew of a British ship, the E., in regard to a collision, had been taken by the Eeoeiver of Wreck, and the Board of Trade refused to give copies of such depositions to the owners of the P., in an action arising out of the collision between these vessels. Copies had however been obtained for the purpose of the action by the solicitors to the owners of the E., whose master and crew had made the.deposi- tions. On motion by the owners of the P. for leave to inspect and take copies of the deposi- tions in the possession of the solicitors of the owners of the E. : — Held, that these copies were privileged. Tlie Palermo, 9 P. D. 6 ; 53 L. J., P. 6 ; 49 L. T. 551 ; 32 W. E. 403 ; 5 Asp. M. C. 165— C. A. Transfer of Actions.] — When an action is transferred from an inferior court and Consoli- dated with a cross action begun in the High Court, the plaintiffs in the action in the inferior court will be placed in the position of plaintiffs in the consolidated actions, if they began the action in the inferior court before the cross action in the High Court. The Never Despair, 9 P. D. 34 ; 53 L. J., P. 30 ; 50 L. T. 369 ; 32 W. R. 599 ; 5 Asp. M. C. 211 — Hannen, P. S. P. The Bjorn, 9 P. D. 36 n. ; 5 Asp. M. C. 212 n. ; and The Cosmopolitan, 9 P. D. 85 n. ; 5 Asp. M. C. 212 n.— Sir E. Phillimore. Although an action in which the sole question is a question of salvage may, under Ord. XLIX. T. 3, be properly transferred to the Admiralty Division, such a transfer should not be ordered | 5. TRIAL. By Jury— Discretion.]— The plaintiff in an action in i-em for disbursements in the Probate, Divorce, and Admiralty Division, appli^ for an order that the action should be tried by a judge with a jury :— Held, that Ord, XXXVJ. r. 6, gives no absolute right to a jury inactions which before the passing of the Judicature Act,, 1873, would have been tried without a jury ; that the case fell within Ord. XXXVI. rr. 4 and 7a, and that the judge had a discretionary power only, to allow trial by a jury. Tlie Temple Bar, 11 P. D. 6 ; 55 L. J., P. 1 ; 53 L. T.'9Q4 : 34 W. E. 68 ; 5 Asp. M. C. 509— C. A. By Judge with Assessors.] — If the judge who tries the case differs, from his, assessors, he is bound to decide in accordance with his own opinion. Tlie Beryl, 9 P. D. 137 ; 53 L. J.. P. 75 ; 51 L. T. 554 ; 33 W. E. 191 ; 5 Asp! M. C. 321— C. A. 6. EVIDENCE. Trial with Assessors.] — Where the court i& assisted by Trinity masters sitting as assessors, evidence of expert witnesses on questions of nautical skill and sekmanship will not be allowed. The Kirby Hall, 8 P. D. 75 ; 48 L.:T. 797 ; 5- Asp. M. C. 90— Sir E. Phillimore. Admissions in Pleadings.]— When the defen- dant admits all the facts pleaded in the state- ment of claim in a salvage action, the plaintiff will not be allowed to call evidence except by permission of the court, and on special grounds. 1725 SHIPPING— Practice. 172& Ttie Ha)'dwiclt, 9 P. D. 32 ; 53 L. J., P. 23 ; 50 L. T. 128 ; 32 W. K. 598 ; 5 Asp. M. C. 199— Hannen, P. Letter of Captain to Owners.] — A letter written by the captain of a ship to his owners is admissible in evidence against the owners ; though all the statements contained in the letter may not be evidence. The Solway, 10 P. D. 137 ; 54 L. J., P. S3 ; 53 L. T. 680 ; 34 W. K. 232 ; 5 Asp. M. C. 482— Hannen, P. Engineer's Log>] — In an action of damage the engineer's log is admissible as evidence against the shipowner by whom the.engineer is employed. Tlu! Earl of Dumfries, 10 P. D. 31 ; 54 L. J., P. 7 ; 51 L. T. 906 ; 33 W. B. 568 ; 5 Asp. M. C. 342-rButt, J. Beference — Cross-examination of Deponent.] -Under Ord. XXXVIl. r. 2— which enables the evidence in references in Admiralty actions to be given by affidavit — it is in the discretion of the registrar to refuse, if he thinks fit, to give weight to such evidence unless and until the deponent has been cross-examined on his affi- davit, and where the deponent is a party to the action, he may, though resident abroad, be required to attend in this country for such cross- examination. Tlie Parisian, 13 P. D. 16 ; 57 L. J., P. 13 ; 58 L. T. 92 ; 36 W. E. 704 ; 6 Asp. M. G. 249— Butt, J. 7. DAMAGES. Assessment of — Lord Campbell's Act.] — An action for damages under Lord Campbell's Act was commenced in the Admiralty Division, and no application was made to transfer the cause to any other division : — Held, that upon default in pleading by the defendants the plain- tiffs were entitled, under Ord. XXVII. r. 4, to enter interlocutory judgment and to have the damages Msessed and apportioned by a jury. The Orwell, 13 P. D. 80 ; 57 L. J., P. 61 ; 59 L.T. 312; 36 W. E. 703; 6 Asp. M. C. 309— Hannen, P. Interest on.] — In an action in the Admiralty Division, which could not, prior to the Judicature Acts, have been tried in the Admiralty Court, the defendant made no objection to the jurisdic- tion, and interest was, according to the practice in the Admiralty registry, allowed on the assessed damages from the time when the plaintiffs' claim arose. In a.nother action transferred by consent, after verdict for the plaintiff, to the Admiralty Division for the assessment of the damages by the registrar and merchants, the same practice was followed in regard to the interest: — Held, that interest on the dam'ages was properly awarded by the registrar an the -ground that the parties, in both cases, having proceeded on the understanding that the Admiralty practice should apply, had impliedly consented to abide by such practice. Tlie Gertrude, Tlie Baron A ierdare, 13 P. D. 105 ; 59 L. T. 251 ; 36 W. E. 616 ; 6 Asp. M. C. 315— C. A. Affirming 56 L. J., P. 106— Hannen P. In Collision Actions.] — See ante, cola. 1698 et seq. 8. SALE OF SHIP. When Ordered.] — An order will not be made: for the sale of a vessel even upon the application of the owner, where suoh vessel is not proceeded against in the court. The Wexford, 13 P. D^ 10 ; 57 L. J., P. 6 ; 58 L. T. 28 ; 36 W. E. 560 ;. 6 Asp. M. C. 244— Butt, J. At Instance of Co-owners.]- Mariort, ante, col. 1648. -See Tlie Sale of Ship and Cargo — Freight.] — Where in an action in rem for collision against ship and freight, in which the defendants' ship was held solely to blame, the ship being still under arrest with the cargo on board, was ordered to be sold ;. the court on motion directed the marshal to- discharge the cargo, to retain the same in his custody as security for the payment of the land- ing and other charges and freight, if any, due- from the owners or consignees of the cargo in respect of the same, and that in default of any application for the delivery of the cargo within fourteen days, the marshal should be authorised to sell such part of the cargo as might be neces- sary to pay the -said charges and freight, if any,, due. Tlie Gettysburg, 52 L. T. 60 ; 5 Asp. M. C. 347— Butt, J. Foreign Ship — Affidavit.] — The court ordered the sale of a foreign ship on the report of the marshal that it was desirable she should be sold, and subject to the filing of an affidavit, verifying the cau^e of action and stating that no appearance had been entered. The Hereules,. 11 P. D. 10 ; 54 L. T. 273 ; 34 W. E. 400 ; 5 Asp.. M. C. 545— Butt, J. Appraisement — Private Contract.] — In an action for master's wages and disbursements,, where the ship proceeded against was subject to- other claims by mokg'agees and material men, the court upon motion, no opposition being offered, drdered an official appraisement of the ship to be made, and the ship to be sold by the marshaiby jjrivate contract for a sum of money not less than the appraisement, upon proof that the mortgagtees assented to such sale, and that notice of the ihotioh had' been served upon all the claimants. The Planet, 49 L. T. 204 ; 5 Asp. M. C. 144— Hannen, P. Expenses — Marshal's Fees — Mortgagees.] — The C. was arrested in an action for necessaries supplied by the plaintiff. The owners appeared but did not give bail or deliver pleadings. The mortgagees of the C. intervened, and took pos- session under the mortgage, but the C. still remained in the custody of the matshal, and'was subsequently sold by hiin iinder an order of the court obtained by the interveners. Judgiiient with costs, by consent, for' the interveners, was afterwards entered. ' XJAder it the interyeriers claimed from the plaintiff the amount due to the marshial for the expenses of the sale :^Held, that as the interveners, though able to obtain the release of the 0. by giving bail, had not done so, but had obtained an order for the sale 6i the C. and had received the proceeds of such sale, they must bear the expenses of it. The Colonsaf, 11 P. D.17 ; 55 L. J., P. 31 ; 54 L. T. 338 ; 5 Asp. M. C. 545— Butt, J. 1727 SUIVPINa— Practice. 1728 Fund in Court — Priorities.] — When a fund, by a sale of a ship, is placed in court by one set of claimants, so as to be available for other claim- ants, the former are entitled to their costs up to and inclusive of the sale, though they do not rank first in respect of their actual claim. T?ie Immacolata Concezione, 9 P. D. 37 ; 53 L. J., P. 19 ; 50 L. T. 539 ; 32 W. K. 705 ; 5 Asp. M. C. 208— Butt, J. 9. WAKEANT OF AEEEST. Service.] — A v^arrant of arrest in an action in rem was issued from the City of London Court directed to the high bailifi, and others the bailiffs thereof, but was, without authority from the court, served by a clerk in the high bailiff's office : — Held, that this was not a proper service of the warrant. Per Sir James Hannen : " Any officer " mentioned in 31 & 32 Vict. c. 71, s. 23, means any officer duly authorised by the court. Per Butt, J. ; " That it means any officer whose ordinary duty it is to serve processes, or one duly authorised so to do." The Palomares, 10 P. D. 36 ; 5i L. J., P. 54 ; 52 L. T. 57 ; 33 W. E. 616 ; ■5 Asp. M. C. 343— D. Notice — Telegram.] — When the marshal sends by telegram to his substitute at an outport notice of the issue of a warrant, and such substitute communicates it to the master of the ship against which it is issued, it is a contempt of court to move the ship from the place where it is lying. TU Seraglio, 10 P. D. 120 ; 54 L. J., P. 76 ; 52 L. T. 865 ; 34 W. R. 32 ; 5 Asp. M. 0. 421— Hannen, P. 10. REGISTRAR'S REPORT. Objection to.] — Where an action is instituted in an Admii-alty District Registry by part owners of a ship against the managing owner for an account, and the writ claims an account under Ord. III. r. 8, and an order for the filing of the accounts is made under Ord. XV. r. 1, and the account is proceeded with pursuant to order, and the district registrar reports thereon, such report is to be treated as the usual report in an Admiralty Court action, and if the defen- dant seeks to take objection thereto, he must do 80 according to the provisions of Ord. LVI. r. 11, otherwise the plaintiff will be entitled to judg- ment thereon. Gowan v. Sprott, 51 L. T. 266; ■6 Asp. M. C. 288— Butt, J. Time for.] — A report of the registrar and merchants does not necessarily stand confirmed ■by reason of the defendants failing to take ob- jection thereto within the time provided for in r. 117 of the Admiralty Court Rules, 1859, so as to absolutely entitle the plaintiffs to payment to them by the defendants of a sum of money which the court is of opinion ought not to have been allowed them in the report. The Thyatira, -49 L. T. 713 ; 5 Asp. M. C. 178— Hannen, P. Extension of Time.] — The court will not ■extend the time for objecting to the registrar's report in a co-ownership action without special grounds being shown by the party seeking to object. Gowan v. Sprott, supra. The court has power to extend the time within which objection to the report of the registrar and merchants may be taken. The Thyatira, supra. 11. COSTS. Printing Evidence. ] — The parties to an action between the owners of the B. and the C. agreed that the evidence taken in an action between the owners of the A. and the C, and printed for the purpose of an appeal, should be used in the action between the B. and the C. The plain- tiffs paid the solicitors of the A. for such prints, and charged the sums so paid in addition to the regular charge of Zd. per folio, as though the printing had been done in this action, under Ord. LXVI. r. 7 : — Held, on objection to the taxation, that the charge of ^d. per folio was not improper. 'I%e Mammoth, 9 P. I). 126 ; 53 L. J., P. 70 ; 51 L. T. 549 ; 33 W. R. 172 ; 5 Asp. M. C. 289— Butt, J. Third Counsel.] — In an action arising out of a collision where ^damage had been done to the amount of 2,1001. : — Held, that the charges of a third counsel should not be disallowed. Ih. Counsel's Fees.] — In an action for damage by collision, where the damage to one vessel amounted to 20,000Z., and to the other vessel to 2,000/., three counsel were instructed on behalf of the plaintiffs, and the fees marked on their briefs were respectively, seventy-five guineas, fifty guineas, and thirty guineas, and the registrar, on taxation, reduced these fees to sixty guineas, forty guineas, and twenty-seven guineas ; the court, on appeal from the taxation, allowed the original fees, holding that they were proper fees in a case of that magnitude. The aty ofLuchnow, 51 L. T. 907 ; 5 Asp. M. C. 340 —Butt, J. Inevitable Accident.] — See The Naplet, ante, col. 1697. Discontinuance — Commissions for Bail.] — The expenses of procuring bail for the release of a ship cannot be recovered as costs against a plaintiff who has disconjtinued his action, though in certain circumstances they may be recovered as damages. The Nrnnida, The Collingrove, 10 P. D. 158 ; 54 L. J., P. 78 ; 53 L. T. 681 ; 34 W. R. 156 ; 5 Asp. M. C. 483— D. On Higher Scale. ] — Costs on the higher scale wiU only be allowed under exceptionaJ circum- stances. TheMaisbyoT Cardiff Steamship Com- pany V. Barwich, 63 L. T. 56 ; 5 Asp. M. C. 473— Hannen, P. Costs on the higher scale will only be granted when special grounds of urgency or importance are shown, as it was intended that the lower scale should be the ordinary scale. An award of 2,400Z. having been made in a salvage action, an application under Ord. LXV. r. 9, for costs on the higher scale was made to the court : — Held, that this was not a special ground so as to take the case out of the ordinary rule. Tlie Sorace, 9 P. D. 86 ; 53 L. J., P. 64 ; 50 L. T. 595 ; 32 W. R. 755 ; 5 Asp. M. C. 218— Hannen, P. Be'erence — Collision — Amount of Claim 1729 SHIPPING— Ifrec/iS. 1730 allowed.] — Wliore a plaintiff in a reference in a collision action withdraws a large item of his claim at the reference, and not before, and he recovere less than two-thirds of the amount originally claimed, but more than two-thirds of the amount which remains after his withdrawal of the above item, the original amount of his claim before withdrawal is the claim upon which costs are to be given, and he is not entitled to his costs, riie Etlcan DiMi, 49 L. T. 444 ; 5 Asp. M. C. 154 — Hannen, P. Jurisdiction.] — As by Ord. LXV. r. 1, of the Rules of the Supreme Court, 1883, the costs of all proceedings are in the discretion of the court, the general rule of practice in the Ad- miralty Court as to the costs of references, namely, that when more than a fourth is struck oS a claim, each party pays his own costs, and when more than a third the claimant pays the other party's costs, is wrong, and the court must exercise its discretion according to the circum- stances of each particular case. The Mmpreas Mugenie (Lush. 140) overruled. Tlw Frieile- lerg, 10 P. D. 112 ; 54 L. J., P. 75 ; 52 L. T. 837 ; 33 \V. R. 687 ; 5 Asp. M. C. 426— C. A. Arrest — Bail.] — A ship was arrested, and bail required for an exorbitant sum : — Held, that the plaintiffs must pay the costs and expenses in- curred by the defendants in giving this bail. Tlie George Gordon, 9 P. D. 46 ; 53 L. J., P. 28 ; 50 L. T. 371 ; 32 W. R. 596 ; 5 Asp. M. C. 216 —Butt, J. 12. APPEALS. From County Court — Time for.] — The power conferred by s. 27 of the County Court Admi- ralty Jurisdiction Act, 1868, to extend the time within which an instrument of appeal may be lodged, provided sufficient cause be shown, is not altered or curtailed by s. 6 of the County Courts Act, 1875, this latter section providing an alternative mods of appeal. The Hwiriber, 9 P. D. 12 ; 53 L. J., P. 7 ; 49 L. T. 604 ; 32 W. K. 604 ; 5 A?p. M. C. 181— D. To Court of Appeal.] — Where, on appeal from a county court in an admiralty cause, the Pro- bate Divorce and Admiralty Division alters the judgment, an appeal lies without leave to the Court of Appeal under s. 10 of the County Courts Acts, 1875, notwithstanding s. 45 of the Judicature Act, 1873. The Li/dia, 14 P. D. 1 ; 58 L. J., P. 37 ; 59 L. T. 843 ; 37 W. R. 161— C. A. Collision — Seasons of Kautical Assessors.] — Where in a collision action the nautical assessors sitting in the Admiralty Division reduce their reasons into writing, parties appealing from the decision are not entitled to see these reasons or have copies of them for the purposes of the appeal. The Samhee, 56 L. T. 725 ; 6 Asp. M. C. 130— C. A. Staying proceedings pending Appeal to House of Lords.] — When an appeal is brought from the Court of Appeal to the House of Lords in an ai'- miralty action in which bail has been given by the parlies, an application by the appellant to stay execution pending the appeal will not be granted, unless special circumstances are shown by affidavit. The Annot Lgle, 11 P. D. 114 ; 55 L. J., P. 62 ; 55 L. T. 576 ; 34 W. R. 647 | 6 Asp. M. C. 50— C. A. XIX. WRECKS. Thames Conservancy— Expenses of Baising,] — In ascertaining the charges and expenses of weighing or raising a vessel under the Thames Conservancy Act, 1857, s. 86, the cost of a special apparatus provided by the Conservators for re- moving wrecks, and used on the particular occa- sion, may be taken into account ; such cost comprising interest upon capital invested in the apparatus, repairs, a depreciation fund, and the insurance of the apparatus against risk. The charge for insurance of the apparatus can- not be estimated by reference to the tonnage of the wrecli raised by it. Where it appears that the work in question could have been done more cheaply by a less expensive apparatus, the charges must be based on the lower rate. The Harrington, 13 P. D. 48 ; 57 L. J., P. 45 ; 59 L. T. 72 ; 6 Asp. M. C. 282 -Hannen, P. ITotice to Eeceiver — Bight to Salvage.] — The provisions of s. 450 of the Merchant Shipping Act, 1854, requiring a person who finds or takes possession of a wreck to give notice to the receiver, are not applicable to the case of a per- son who takes possession of a stranded vessel under the belief that he is the purchaser thereof, and in such a case these provisions do not operate to deprive him of his right to recover salvage. The Liffey, 58 L. T. 351 ; 6 Asp. M. C. 255— Hannen, P. liability of Harbour Authority for Non- removal,] — See Dormant v. Furness Railway, ante, col. 1718. XX. INQUIEIES BY BOARD OF TEADE. Refusal to order Be-hearing — Appeal.] — A re- fusal by the Board of Trade to grant a re-hear- ing of an investigation into the conduct of a certificated officer, is not a decision within 42 & 43 Vict. c. 72, s. 2, sub-s. 2, and therefore no appeal lies from it to the Admiralty Division of the High Court. The Ida, 11 P. D. 37 ; 55 L. J., P. 15 ; 54 L. T. 497 ; 34 W. R. 628 ; 6 Asp. M. C. 57— D. Refusal to Institute Inquiry — Foreign Ship.] — A refusal by the Board of Trade to institute an inquiry under 17 & 18 Vict. c. 104, s. 512 is not a condition precedent to an action in rem against a foreign ship. The Vera Cruz, 9 P. D. 88 ; 51 L. T. 24 ; 5 Asp. M. C. 254— Per Butt, J. &c S. C. in H. L., ante, col. 1720. XXI. DETENTION OF SHIPS BY BOARD OF TRADE. Right to Trial at Bar— Change of Venue.]— By the Crown Suits Act, 1865, s. 46, whore in any cause in which the attorney -general is entitled on behalf of the Crown to demand as of right a trial at bar he states to the court that he waives that right, " the court on the application 3 K 1731 SOLICITOE. 1732 of the attorney-general shall change the venue to any court he may select " : — Held, that an action under 39 & 40 Vict. c. 80, s. 10, against the secretary of the Board of Trade, to recover damages for the detention of a ship for survey vcithout reasonable and probable cause, is within the above sectibn, that the attorney-general is entitled to demand as of right a trial at bar in such an action, and that the court is bound on his waiving that right to change the venue to any county wherein he elects to have the action tried. Dixon v. Fa/rrer, 18 Q. B. D. 43 ; 56 L. J., Q. B. 53 ; 55 L. T. 578 ; 35 W. R. 95 : 6 Asp. M. C. 52— C. A. Liability of. 1. Summary Jurudietion. a. Striking off the Eoll, 1741. 6. Attachment, 1742. c. For Costs, 1743. d. For Payment of Money, 1744. e. Delivery up of Documents, 1746. 2. For Negligence, 1746. 3. In otlier Cases, 1748. 4. Wliat Acts of Partner Firm, 1749. VI. Costs. SLANDER. See DEFAMATION. SLANDER OP TITLE. See TRADE, SOCIETY. Building,] — See Building Society. Friendly.] — See Friendly Society. Benefit.]— (Sse Feiendly Society. Industrial.]- (See Industrial Society. SOLICITOR. I. Articled Clerks, 1733. II. Cbetipicate, 1733. III. Privilege. 1. Personal to Solicitor, 1733. 2. In Matters relating to Clients, 1733. IV. Authority and Duty. 1. Authority in General, 1735. 2. Dealings with Clients. a. Mortgage by Clients, 1737. -■ J. Gifts to and Purchases by Solici- tor, 1739. i. Notice to Solicitor, wjien Notice to Client. — See Notice. 4, Other Duties in relation to Clients, 1740. 1. Bill of Costs. a. Delivery of, 1750. J. Contents of, 1752. c. Agreements as to Costs, 1753. d. Interest on, 1753. 1-. Taxation of, 1753. i. Who entitled to Order, 1753. ii. Practice Generally, 1754. iii. After Payment, 1756. iv. More than Twelve Months after Delivery, 1759. V. Costs of Taxation, 1761. vi. Reviewing Taxation, 1762. vii. What Sums allowed, — See infra, VI. 2. 2. Wliat Swms allowed, 1763. a. Solicitors Remuneration Act. i. Election as to Scale, 1763. ii. In what cases applicable, 1765. a. Generally, 1765. /3. Sale of Land, 1767. 7. Leases, 1773. 8. Mortgages, 1774. c. Trustee and Cestui que Trust, 1775. h. In other Cases, 1775. c. When Solicitor a Party, 1778. d. When Solicitor an Executor or Trustee, 1778. 3. Payment, 1781. 4. Recovery of, 1781. 6. Idenfor, 1783. a. What Debts, 1783. h. On what Property, 1783. c. In what Cases, 1784. d. Priority, 1785. e. When Lost, 1786. /. Set-off, 1787. g. Collusion, 1787. 6. Charging Orders, 1787. a. Who entitled to, 1787. S. In respect of what Costs, 1788. c. Property Recovered or Preserved, 1788. d. Priority, 1790. e. Raising Costs, 1792. VII. Country Solicitor and London Agent, 1792. VIIL Change op Solicitors, 1792, - IX. Unqualified Practitioners, 1793. X. Attestation of Bill op Sale by. — See Bills of Sale, I., 4 and 5, 1733 SOLICITOR. 1784 I. ABTICL£I> OLEBKS. Examination — Ten Years' Employment.] — A solicitor's clerk claimiug the right under s. i of 23 & 24 Vict. c. 127, to go up for his inter- mediate examination after having served as general clerk in a solicitor's office for ten years, and as an articled clerk for a year and a half, stated, in answer to 'questions put to him by the examiners of the Incorporated Law Society, that he had commenced such antecedent ser- vice at the age of thirteen. The examiners decided that service at such age was not bona Me an active employment in the business of a solicitor's office, and refused to admit him to the examination. On an application to the High Court to overrule this decision : — Held, that no appeal would lie. James, In re, 33 W. E. 654— D. Death of Solicitor — Eeturn of Premium. ] — ^A solicitor who had received a premium on taking an articled clerk, died during the term of the articles : Held, that his estate was not liable for the return of any part of the premium. Ferns v. Carr, 28 Ch. D. 409 ; 54 L. J., Oh. 478 ; 52 L. T. 348 ; 33 W. R. 363 ; 49 J. P. 503— Peai-son, J. II. CEBTIFICATE. Eenewal.] — ^Where a, solicitor has neglected for a whole year to renew his certificate, the Master of the Rolls only has power to order the registrar of certificates (the Incorporated Law Society) to grant him a certificate for the •current year. The right of a solicitor who has neglectal to renew his certificate to apply for a fresh one is not a " right acquired or accrued " within 40 & 41 Vict. c. 25, s. 23, Proviso (B). (Maffers, In re, Incorporated Law Soeietij, Ex parte, 15 Q. B. D. 467— D. — Bestrainlng by Court, instead of Striking •off Rolls.] — See Wliiteliead,Inre, post, col. 1741. III. PEIVIXEGE. 1. PERSONAL TO SOLICITOR. Action commenced in High Court — Costs — iCounty Courts Act, 1867, s. S.] — Section 5 of the County Courts Act, 1867, which deprives plain- tiffs in actions commenced in the High Court of •costs if less than 20Z. in contract, or lOZ. in tort, is recovered, applies to an action in which a •solicitor is plaintiff. Blair v. Elsler, 21 Q. B. D. 185 ; 57 L. J., Q. B. 512 ; 59 L. T. 337 ; 36 W. E. 767— D. May be sued in Mayor's Court.] — A solicitor is equally liable to be sued ia an action in the Mayor's Court as in the Superior Court. Bay v. Ward, 17 Q. B. D. 703 ; 55 L. J., Q. B. 494 ; 55 Jj. T. 518 ; 35 W. B. 59— D. 3,. IN MATTERS RELATING TO CLIENTS. Frodnction of Deed — STames of Clients.] — In an action against a married woman judg- ment was given for the plaintiff, and an inquiry' was directed before a master as to her separate estate. On the defendant's marriage a settle- ment had been executed, to the trustees of which the appellant was solicitoi-, and as such, was in possession of the deed. The appellant appeared before a master on a subpoena duces tecum, and was called upon to produce the deed, but refused to give the names of the trustees although he admitted that he knewthem : — Held, first, that the appellant was bound to produce the deed inasmuch as his clients, the trustees, could not have withheld it ; secondly, that he was bound to give the names of the trustees on the ground that, the privilege of the soli- citor being the privilege of the client, the solicitor is bound to state the names of those for whom he claims the privilege, and on the fm-ther ground that the applicant's knowledge of the trustees might have been obtained otherwise than by means of confidential communications from his clients. BursUl v. Tanner, 16 Q. B. D. 1 ; 55 L. J., Q. B. 53 ; 55 L. T. 445 ; 34 W. R. 35— C. A. Solicitor Defendant in Action — Confidential Communication.] — In an action for hbel con- tained in a circular, the defendants justified, giving full particulars of the justification. The plaintiff administered interrogatories as to certain communications referred to by the defendants, which they objected to answer upon the ground that by so doing they would disclose facts and information obtained by them in confidence and acting in their capacity as solicitors for a client : — Held, that the defendants were not bound to further answer the interrogatories, the privilege claimed not being their privilege, but that of their clients. Proctor v. Smiles, 55 L. J., Q. B. 527— C. A. Advice sought to further Commission of Crime.] — ^AU communications between a solicitor and his client a'i^e not privileged from disclosure, but only those passing between them in profes- sional confidence and in the legitimate course of professional employment of the solicitor. Com- munications made by a solicitor to his client before the commission of a crime for the purpose of being guided or helped in the commission of it, are not privileged from disclosure. Reg. v. Com, 14 Q. B. D. 153 ; 54 L. J., M. C. 41 ; 52 L. T. 25 ; 33 W. R. 396 ; 49 J. P. 374 ; 15 Cox, C. C. 611— C. C. R. C. and R. were partners under a deed of part- nership. M. brought an action against R. & Co., and obtained judgment tlierein, and issued exe- cution against the goods of E. The goods seized in execution were then claimed by C. as his absolute property under a bill of sale , executed in his favour by R. at a date subsequent to the above- mentioned j udgment. An interpleader issue was ordered to determine the validity of the bill of sale, and upon the trial of this issue, the partner- ship deed was produced on O.'s- behalf, bearing an indorsement purporting to be a memorandum of dissolution of the said partnership, prior to the commencement of the action by M. Subse- quently C. and R. were tried and convicted upon a charge of conspiring to defraud M., and upon that trial the case for the prosecution was, that the bill of sale was fraudulent, that the partner- ship between E. and C. was in truth subsisting when it was given, and that the memorandum of dissolution endorsed on the deed was put there after M. had obtained judgment, and fraudulently 3 K 2 1735 SOLICITOR— Authority and Duty. 1736 imtedated, the whole transaction being, it was alleged, a fraud intended to cheat M. of the fruits of his execution. Upon the trial a solicitor was called on behalf of the prosecution to prove that after M. had obtained the judgment C. and E. together consulted him as to how they could defeat M.'s judgment, and as to whether a bill of sale could legally be executed by R. in favour of C. so as to defeat such judgment, and that no suggestion was then made of any dissolution of partnership having taken place. The reception of this evidence being objected to, on the ground that the communication was one between solicitor and client, and privileged : the evidence was received, but the question of whether it was properly received was reserved for this court : — Held, that the evidence was properly received. Cromaok v. Heatlicote (2 B. & B. 4) ; Rex v. Smith (1 Phil. & Am. on Evidence, 188) ; and Boe V. HarrU (5 C. & P. 592), overruled. Follett V. -Jefferyes (1 Sim., N. S. 1) ; Russell v. Jaehson (9 Hare, 387) ; and Gartside^. Oiitram (26 L. J., (Ch. 113), approved. li. Communications with Client when Privileged from Discovery.] — Sec Discoveby, I., i and II., 5. IV. AUTHORITY AND DUTY. I. AUTHOKITY IN GENERAL. Retainer — To issue Writ — London Agent.] — A retainer to a country solicitor does not justify an action in which his London agents are the solicitors on the record. A., an illiterate woman, being desirous of knowing whether there was any balance coming to her, as administra- trix of C, her deceased husband, out of the proceeds of a sale by the mortgagee of property mortgaged by C, gave to B., a country solicitor ( who had recovereil judgment in an action against her, as administratrix, for a debt due to him from her deceased husband) this written retainer : " I hereby authorise you to act as my solicitor in the administration of my late husband's estate, and authorise you to investigate the accounts of the mortgagee, and take such steps as you may think proper in the matter on my behalf." A writ was subsequently issued by a London firm of solicitors in the names of A. and B., as plain- tiffs, claiming an account of the proceeds of sale of the mortgaged property and payment of the balance, the claim by A. being " as legal per- sonal representative of C," by B. " as a creditor of C. who had obtained judgment against A., and had obtained execution by the appointment of a receiver of the balance due from C." Upon motion by A. that her name might be struck out oE the writ as having been issued without her knowledge and without any authority on her part : — Held, that the retainer was not suiBcient to justify the issue of the writ ; but whether suiBcient or not, it was a retainer to B., and did not authorise the London firm to issue the writ in the name of A. as her solicitors. Wray v Kemp, 26 Ch. D. 169; 53 L. J., Ch. 1020; 50 L. T. 552 ; 32 W. E. 334— Chitty, J. Service of Notices on farmer Solicitor.] — Whore a, judgment has not been worked out, nor the fruits of the judgment obtained, in- asmuch as it is the duty of the solicitor of the defendant to defend his client's interest in the event of execution being levied against him, his authority still continues so as to make service of a notice of appeal on him good service on his client, until such time as the client has taken the proper steps for informing his opponent that he has withdrawn his solicitor's authority. Be la Pole ^Lady) v. Bid, 29 Ch. D. 351 ; 54 L. J., Ch. 940 ; 52 L. T. 457 ; 33 W. E. 585— C. A. Employment to collect a Debt — Proceedings in Interpleader.] — A solicitor who has recovered judgment for a client under an ordinary re- tainer, has no authority, without special instructions, to engage in proceedings in inter- pleader. James v. RlcUnell, 20 Q. B. D. 164 ; 57 L. J., Q. B. 113 ; 58 L. T. 278 ; 36 W. R. 280— D. To Receive Mortgage Money] — G. and H. were mortgagees for 1,000Z. on property of S. Their solicitors, D. & P., who had the deeds in their custody, applied to the defendant, who was also a client of theirs, saying that they believed he had 1,000Z. to invest on mort- gage, and that G. and H. wanted 1,000Z. on a transfer of S.'s mortgage. The defendant in- spected the property, and being satisfied, he. ou the 12th of June, 1878, sent the l,O00Z. to D. & P., who gave him a receipt for it. In July, D. & P. fraudulently induced G. and H. to execute a deed of transfer to the defendant with a receipt indorsed, which deed they stated to G. and H. to be a deed of reconveyance to S. on his paying oS the mortgage. D. & P. shortly afterwards handed this deed with the title deeds to the defendant, and went on paying him interest as if they had received it from S., who was in fact paying his interest to the agents of G. and H. ; G. and H. made no inquiry as to the mortgage, and this went on till 1883, when D. & P, became bankrupts, and the 1,000Z. received from the defendant, which had never been handed over to G. and H., was lost. G. and H. then brought their action against the defendant, asserting a right against the property in the nature of an unpaid vendor's lien : — Held, that as the plain- tiffs by the deed of transfer and receipt which they handed to D. & P. enabled them to repre- sent to the defendant that the l,O00Z. which he had previously handed to D. & P. had come to the hands of the plaintiffs, they had raised a counter t equity which prevented their claiming a vendor's lien, though this would not have been the case if (D. & P. having no authority to receive money for the plaintiffs) the defendant had paid the 1,000Z to D. & P. at the time when the deeds were delivered to him, since he would then have known that the plaintiffs had not received the money. SwinbanJis, Ex parte (11 Ch. D. 525), distinguished. Gordon v. James, 30 Ch. D. 249— C. A. To receive Payments from Receiver.] — The solicitor having carriage of the proceedings has. not, as such, and in the absence of special authority in that behalf, power to give a valid receipt for moneys ordered to be paid by a receiver to his client. Broivne's Estate, In re, 19 L. R., Ir. 183-C. A. 1737 SOIACIT OK— Authority and Divty, 1738 2. DEALINGS WITH CLIENTS. a. Morteragre by Clients. Absence of Independent Advice — Bate of Interest — Power of Sale.] — The plaintiff, who had only just attained his majority, and his sister and brother, being entitled in remainder under a will of which K., who was their father, and P. were trustees, and under which E. was tenant for life, joined with E. in mortgaging the property to secure advances, with interest thereon at 10 per cent., which was made for E.'s benefit. The power of sale was exercisable without notice, and the mortgage contained a clause providing that if the power of sale should arise in the lifetime of E., it should be lawful for P. to postpone the sale, or to await E.'s death, and then obtain payment of the shares of the children. P. was a certificated conveyancer, and prepared the deeds for all parties. In an action by the plaintiff against E. and P. and the other mortgagors, claiming to have the deeds set aside on the ground of undue influence and want of proper advice, or that E. might indemnify the plaintiff, the judge being satisfied that the plaintiff had, on his own evidence, acted volun- tarily and with full understanding, the plaintiff was refused relief against P., but E. having used the trust funds for his own benefit, was ordered to indemnify the plaintiff against his liability to P.: — Held (on appeal against the judgment in favour of P.), that the court being dissatisfied with the mortgage (1 ) on account of the interest being 10 per cent.; (2) on the ground that the •exercise of the power of sale could be postponed ; and (3) on the ground that the power of sale was unrestricted, the judgment would only be affirmed on the terras of (1) P. asking for no costs in the court below or on appeal ; (2) P. undertaking to press for no interest against the plaintiff which had accrued due in E.'s lifetime ; (3) P. allowing the plaintiff to redeem his share on payment of a sum proportionate to his share of the property mortgaged. Ssaddy v. Pcnder- gast, 56 L. T. 790— C. A. TTunsnal Provisions — Power of Sale — Duty to Explain Provisions.] — In April, 1879, P. ■owed 450Z. to his solicitor K., who was pressing for payment. On the 11th of April, 1879, he gave K. his promissory note for 4662. 17«. Wd.. payable three months after date, and on the SIst of May signed an agreement to mortgage to K. his interest in a railway for the 466Z. 17*. \0d. The agreement contained a provision that, if that sum was not paid on the 11 th of July, K. should be at liberty to sell the property without notice. The agreement was drawn by K., and P. had no independent advice. Default having heen made, K. sold without giving such notice as is required in the common form of power of sale : — Held, that as this was not an ordinary mortgage transaction, but an arrangement for giving the client time for payment of a debt presently payable, the doctrine of Cockbmrn v. Edwards (18 Ch. D. 449) did not apply ; that it was not incumbent on K. to explain to P. the unusual form of the power of sale ; and that the sale could not be impeached on the ground that it was not authorised by the common form of power. Pooley'i Trwgtee v. Whetham. 33 Ch. D. Ill ; 55 L. J., Ch. 891) ; 55 L. T. 333 ; 34 W. R. «89— C. A. In a mortgage to a solicitor by his client there was a power of sale without qualification. It was not explained to the mortgagor that it was usual to insert a proviso that the power should not be exercised unless interest was in arrear for three months or notice to pay off had been given : — Held, that the power could not be properly exercised as against the mortgagor, though three mouths' interest was in arrear. Omddock V. Uogers, 53 L. J., Ch. 968 ; 51 L. T. 191— North, J. Injunction to Restrain Sale by mortgagee.] — The ordinary rule that the court will not grant an interlocutory injunction restraining a mortgagee from exercising his power of sale except on the terms of the mortgagor paying into court the sum sworn by the mortgagee to be due for principal, interest, and costs, does not apply to a case where the mortgagee at the time of taking the mortgage was the solicitor of the mortgagor. In such a case the court will look to all the circumstances of the case, and will make such order as will save the mortgagor from oppression without injuring the security of the mortgagee. Macleod v. Jones, 24 Ch. D. 289 ; 53 L. J., Ch. 145 ; 49 L. T. 321 ; 32 W. E. 43— C. A. The plaintiff was a lady who was entitled to a life interest in leasehold property which she had mortgaged to various persons. The defendant acted as her solicitor, and with her sanction, in order to release her from embarrass- ment, bought up several of the incumbrances with his own money and took a transfer of them to himself, having previously taken a mortgage of the life interest to secure his past costs and the costs which he might incur in paying off the incumbrances. Afterwards the plaintiff discharged the defendant, and em- ployed another solicitor, who applied to the defendant for information respecting the seeu- rities transferred. The defendant refused to give this information unless the payment of what was due to him was guaranteed, and threatened to proceed to a sale of the property. The plaintiff then brought an action to impeach the securities and to restrain the sale of the property, and moved for an injunction till the hearing : — Held, that, considering all the cir- cumstances, an injunction ought to be granted, on the plaintiff paying into court such a sum as the court considered would cover the amount actually advanced by the defendant, and amend- ing the writ so as to make it a simple action for redemption and injunction. li. Bate of Interest allowable.] — Where the mortgagee at the time of making the mortgage was the solicitor of the mortgagor, and a dis- pute arose as to the rate of interest to which he was entitled : — Held, that interest must, under the circumstances, be allowed at 5 per cent. MaoUod V. Jones, 53 L. J., Ch. 534 ; 50 L. T. 358 ; 32 W. E. 660— Pearson, J. Opening Settled Account— Lapse of Time.]— Accounts between a mortgagee solicitor and nis client, the mortgagor, stated and signed more than thirty years ago, were opened on the grounds that the client had no independent advice, and signed without examination or ex- planation, that the accounts contained improper items, and that a third person was put forwai'd 1739 SOIjICITO'R—Authoriti; and Duty. 1740 as tHe hiortgagee. Ward v. Sharp, 53 L. J., Ch. 313 ; 50 L. T. 557 ; 32 W. R. 584— North, J. b. Qifts to and Furchases by Solicitol:. Voluatary Gift— Election to Abide by — Delay — Action by Personal Eepresentative. ] — If a person, who has made a gift to a solicitor while therelation of solicitor and client subsisted be- tween them, is entitled at the time of his death to have the gift set aside, the personal represen- tative of the deceased upon his death, succeeds to the right, although the deceased had no in- tention of ■ exercising it. and had even expressed a determination not to do so, for he might have changed that determination the next day, and would have had a perfect right to do so. A solicitor cannot take a gift from his client while the relation of solicitor and client subsists, and, in order to sustain such a gift, if made, some- thing must be done, after the confidential rela- tion has ceased, amounting to a release of the client's right to set aside the gift ; but the sub- sequent settlement by the client of a bill of costs does not amount to such a release. Tyars v. Alsop, 59 L. T. 367 ; 36 W. R. 919— Kekewich, J. Affirmed 37 W. E. 339 ; 53 J. P. 212— C. A. A., acting as a solicitor for G. in an action, in June, 1880, recovered by a compromise, 5,000Z. for her, which he received, and, out of it, by her desire, retained 1,000?. as a gift to himself. The relation of solicitor and client terminated shortly afterwards. In his evidence A. swore that in April, 1883, G. had told him that she had deter- mined to adhere to what she had done. Since the .severance of the relation G. had also settled a bill of o costs, and had never done any act indi- cating an intention to recede from her gift. She died in June, 1883. Her administratrix com- menced this action within six months, but died in October, 1884. In June, 1886, T. took out ad- ministration to G.'s efEects, and in the following August he got an order of revivor in this action. Poverty was the excuse given for the delay : — Held, that the gift was bad at the time it was made ; that G. had never eflEectually released her right to set it aside, and at the time of her death was entitled to exercise that right ; that on her death her personal representative succeeded to the right ; that it had been kept alive by the action notwithstanding the delay ; and that the gift must consequently be now set aside. 3Ii)r- ga% V. Morgan (6 Ch. D. 638) approved and fol- lowed. Mitcliell V. Somfray (8 Q. B. D. 587) explained and distinguished. JJ. Purchase from Client's Trustee in Bankruptcy ^Obligation to make complete Disclosure.] — An action was brought-by the trustee in bankruptcy of L. to set aside a sale, made by a former trustee in the bankruptcy, of the bankrupt's interest in certain freehold property under a will. The defendants were J. P., the solicitor of the bank- rupt, and his brother, W. P., and the sale was Inade to J. P. in the name of W. P. as his nominee. Upon the construction of the will, under which the bankrupt was entitled, it was doubtful whether he took absolutely or for life only. In the former case his interest would be worth about 2,000Z. ; in the latter case about 200Z. J. P. purchased it for ni., and it was subsequently declared by the court to be an absolute interest. J. P. had acted as solicitor to the bankrupt before and after his bankruptcy, and had advised him, according to counsel's- opinion, that he took only a life interest. The question was, whether the rule of law, which prevents a solicitor from purchasing theproperty of his client withbut giving full and complete disclosure, applied to a purchase by a solicitor from the trustee in bankruptcy of his client. In- the view which the court took of the evidence, the confidential relation of solicitor and client existed between J. P. and the bankrupt at the time of the purchase, and J. P. had acquired a knowledge or belief as to the value of the pro- perty, which he would have been bound before buying to communicate to L., in case he had not been bankrupt, and which he did not disclose either to L., or his trustee, or to the solicitor of the trustee : — Held, that the trustee in bankruptcy so stood in the place of the bankrupt that the bankrupt's solicitor could not be .allowed, as. against the trustee, an advantage obtained by him on a purchase from the trustee by means of the knowledge he had gained while acting as. solicitor for the bankrupt ; and, therefore, that the transaction could not be supported in equity, and that the defendants must be declared to be trustees of all the advantage of the purchase for L.'s trustee in bankruptcy. Luddy's Trustee v. Peard, 33 Ch. D. 500 ; 55 L. J., Ch. 884 ; 55 L. T. 137 ; 35 W. R. 44— Kay, J. Sale by Court — Leave to Bid. ] —Leave to bid at a sale by the court, granted to a solicitor on the record, relieves him from his fiduciary cha- racter, and places him in the same position as an ordinary purchaser. Coalts v. Boswell, 11 App. Cas. 232 ; 55 L. J.. Ch. 761 ; 55 L. T. 32— H. L. (E.). Reversing 33 W. R. 376— C. A. 3. NOTICE TO SOLICITOR, "WHEN NOTICE. TO CLIENT.— &e Notice. 4. OTHER DUTIES IN RELATION TO CLIENTS. Solicitor appointing Son as Co-Trustee.]- On the retirement of one of two trustees of a will, the continuing trustee, who was the solicitor to- the trustees, appointed his son, who was his part- ner in his business, to be a new trustee. The- trusts of the will were being administered by the court : — -Held, that, without any reference to the personal fitness of the sop, by reason of his position, the appointment was one which the; court ought not to approve, though it would not have been invalid if the court had not been administering the trusts. Noi-ris, In re, Allen V. uXorris, 27 Ch. D. 333 ; 53 L. J., Ch. 912 ; 51 L. T. 593 ; 32 W. R. 955— Pearson, J. Preparation of Wills.] — It is a failure of duty on the part of a solicitor to prepare a will under any circumstances without seeing the testator, and it is utterly inexcusable to do so for an aged testator on the instructions of a person who is named an executor, and is to receive such a benefit as a legacy of 3,000?., with a percentagfr on the income of the property to be adminis- tered by him. The solicitor in such, a case might prepare a draft, or even an engrossment, but h& 1741 BOliICIT OH— Uability of. 1742 ought never to part with it until he had seen the testator. Clery v. Barry, 21 L. K., Ir. 152 — C. A. Voluntary Deed — STo Power of Bevocation.] — It is the duty of a solicitor who prepares a voluntary deed on behalf of a client to distinctly call the attention of the settlor to the advisable- ness of inserting a clause of revocation, and to point out the results that might ensue from the omission. Horan v. JUacmahim, 17 L. E., Ir. 641— C. A. T. IIABILIIY OF. 1. SUMMARY JURISDICTION. a. Striking off the Boll. Appeal to Court of Appeal.] — When the High Court makes an order ordering a solicitor to te struck ofE the rolls for misconduct, it does so in exercise of a, disciplinaiy jiirisdicrion over its own officers, and not of a jurisdiction in any criminal cause or matter within the meaning of s. 47 of the Judicature Act, 1873, and there- fore an appeal lies from such order to the Court of Appeal. Hardmeh, In re, 12 Q. B. D. 148 ; 53 L. J., Q. B. 64 ; 49 L. T. 584 ; 32 W. R. 191 — C.A. . — — Security for Costs.]>^A solicitor who ap- pealed- from an order striking him off the roll, and directing an account and payment of moneys due from him to clients of his who obtained the order, was directed to give security for costs, it being shown that he was in insolvent circum- stances. Whether security for costs would have been required if the solicitor had appealed only against an order striking him off the roU, qusere. Strong, In re, 31 Ch. D. 273 ; 55 L. J., Ch. 506 ; 54 L. T. 219 ; 34 W. R. 420— C. A. Jurisdiction of Court of Appeal.] — From the evidence given by a solicitor in an action in the court of the County Palatine of Lancaster, he appeared to have been guilty of gross miscon- duct in his character of solicitor as to one of the mortgages to which the action related. The plaintiffs in the action having appealed, the con- duct of the solicitor came under the considera- tion of the Court of Appeal, who directed the official solicitor to take proceedings. The official solicitor accordingly moved in the Court of Ap- peal for an order calling on the solicitor to ex- plain his conduct, or that he might be struck off the roll : — Held, that the Court of Appeal had jurisdiction to entertain the application, although not brought before them by way of appeal. Whitehead, In re, 28 Ch. D. 614 ; 54 L. J., Ch. 796 ; 52 L. T. 703 ; 33 W. R. 601— C. A. Bestraining Solicitor from applying for Be- newal of Certificate.] — The solicitor had not taken out his certificate for several years and did not take any notice of the application. The court, under the special circumstances of the case, did not think fit to strike him off the roU or suspend him, but made an order restraining •him from applying to renew his certificate with- out the leave of the court. Ih. b. Attachment. Default in Payment subsequent to Order Striking off Eoll.]-^Where a solicitor makes default in payment of a sum of money which he has been ordered to pay in the character of an officer of the court, he is not the less liable to an attachment because in the interval between the date of the order and the time fixed for pay- ment he has been struck off the roll, and has ceased to be a solicitor. Strong, In re, 32 Ch. D. 342 ; 55 L. J., Ch. 553 ; 55' L. T. 3 ; 34 W. E. 614 ; 51 J. P. 6— C. A. Of the three possible periods fo;r ascertaining whether the person ordered to pay and making default held the character of a solicitor, and was as such within the exception of s. 4, sub-s. 4, of the Debtors Act, 1869, viz.— (1) of the act done ; (2) of the order made ; or (3) of the default committed, that to be looked to is,, if not the first, at the latest the second period. In cases of a trustee and person acting in a fiduciary capacity (sub-s. 3) (and per Fry, L. J., in that of a solicitor also) the period to be looked to is that of the act done. IT). Non-compliance with Order for Payment.] — A solicitor received on behalf of a client a sum of 339^., which he paid into his account with his own bankers and dealt. with as his own money. He afterwards forwarded to his client a sum of lOOZ., and refused to pay the balance, on the ground that he had a claim against an agent whom his client had employed to communicate with him. Application having been made to the Queen's Bench Division to compel the solicitor to pay the money, the matter was referred to a master, who reported that the balance was due from the solicitor to his client. An order was made by the Queen's Bench Divi- sion, and also a subsequent order was made at chambers, that the solicitor should pay the balance claimed to his client. These orders not having been complied with, an order for the attachment of the solicitor was made by a judge at chambers : Held, that the orders for the payment of the balance claimed were not merely in, the nature of civil process, but were orders made against the solicitor as an officer of the court, and that the attachment was properly granted. Ball, In re (8 L. R., C. P. 104) explained, Freston, In re (11 Q. B. D. 545) followed. Dudley, In re, Monet, Ex parte, 12 Q. B. D. 44 ; 53 L. J., Q. B. 16 ; 49 L. T. 737 ; 32 W. R. 264— C. A. Town Agent of Country Solicitor.] — A solicitor, the London agent of a country solicitor, made default in payment of a sum ordered to be paid by him in an action for an account of his agency : — Held, that the defendant was liable to im- prisonment under s. 4, sub-s. 3, of the Debtors Act, 1869, as a person acting in a fiduciary capacity, but not liable under s. 4, sub-s. 4, as a solicitor ordered to pay in his capacity of officer of the court. IMchfidd v. Jones, 36 Ch. D. 530 j 57 L. J., Ch. 100 ; 58 L. T. 20 ; 36 W. R. 397— North, J. Effect of Beceiviug Order in Bankruptcy — Jurisdiction.] — An attachment against a soli- citor for his default in the payment of a sum of money, which he has been ordered to pay in his character of an officer of the court, is not a merely civil process, but is in its nature 1743 SOLICITOR— LiaUlity of. nu punitive or disciplinary, and therefore the fact that a receiving order in bankruptcy has been made against the solicitor is not of itself a sufficient reason for refusing to issue an attach- ment against him in such a case ; but that when such an order for the payment of money has been made against a solicitor before the making of a receiving order against him, and he has not obeyed it, the court has, under s. 10 of the Bank- ruptcy Act, 1883, a discretion whether it will order an attachment to issue by way of punish- ment to the solicitor, and it will decline to do so if it is satisfied that the person who asks for the order can derive no benefit from it, and that the making of it will embarrass the bankruptcy pro- ceedings. Sect. 9, sub-s. 1, of the Bankruptcy Act, 1883, does not apply to proceedings pending against a debtor at the time when a receiving order is made against him. On appeal : — Held, that the Court of Appeal would not interfere with the discretion of the court below. W7'aj/, In re, 36 Ch. D. 138 ; 56 L. J., Ch. 1106 ; 67 L. T. 605 ; 36 W. R. 67— C. A. c. For Costs. Of Infant Defendant.] — Where a writ of sum- mons is served on an infant, and an appearance entered for him by a solicitor, without knowledge of his infancy and bona fide, and costs are sub- sequently incurred by the plaintiff in proceed- ings in the action, which became abortive by reason of the defendant's infancy : — Held, that although the appearance and defence will be set aside as iiTCgular, the solicitor entering the appear- ance is not personally liable for the costs thereby occasioned to the plaintiff. Wade v. Keefe, 22 L. E., Ir. 154— Q. B. D. Notice of Appeal — Client suing in forma pauperis.] — ^A former solicitor of the plaintiff in an action, who was suing in form§, pauperis, served notice of appeal on all the defendants who had been successful in the court below. These respondents appeared by counsel on the hearing of the appeal, but no relief was then asked as against one of them. He had not been previously informed that the appeal would not be pressed against him, and had incurred expense in preparing to resist the appeal : — Held, that it was a proper case for giving leave to the re- spondent to serve the solicitor with a notice of motion for an order to show cause why he should not pay the costs incurred by serving notice of appeal without good cause. Martimon v. Clowes, 52 L. T. 706 ; 33 W. E. 555— C. A. Order to repay Costs on Beversal of Judg- ment.] — An action being dismissed at the hearing with costs, a sum of money which had been paid into court as security for the defendants' costs was ordered to be paid out to the solicitors for the defendants in part payment of the de- fendants' costs. The judgment was reversed by the Court of Appeal, and the costs ordered to be paid by the defendants. The plaintiffs asked for an order against the defendants's solicitors for repayment by them : — Held, that the court had no jurisdiction on the appeal to order the de- fendantS' solicitors to refund the money, ihe solicitors not being present. Nor, semble, could such an order have been made if they had been served with notice of the application. Lydney \ and Wigpool Iron Ore Company v. Bird, 33 Ch. D. 85 ; 55 L. T. 558 ; 34 W. R. 749— C. A. Of Proceedings rendered ITecessary by Solici- tor's Conduct.] — Sec Slater v. Slater and Batten V. Wedgwood Coal and Iron Company, infra. Order to Pay — Appeal without Leave.] — An order that the costs of an application at chambers on behalf of a client shall be paid by the solicitor personally cannot be costs left to the discretion of the court within s. 49 of the Judicature Act, 1873, unless the solicitor has been guilty of mis- conduct or negligence, and, therefore, an appeal lies from such order without leave as to whether there has been such misconduct or negligence. Bradford, In re, 15 Q. B. D. 635 ; 53 L. J., Q. B. 65 ; 50 L. T. 170 ; 32 W. E. 238— C. A. d. For Fajrment of Honey. Belation of Solicitor and Client — When con- stituted.] — A client agreed in writing to lend his solicitor a sum of money to enable him to make a purchase of land, but if the purchase was not completed, the money was to be at once repaid. The purchase was not made, and the money was not returned. The client applied for an order for repayment, under the summary jurisdiction of the court : — Held, that, there being no relation of solicitor and client between the parties in respect of the agreement, no order could be made under the summary jurisdiction of the court. Bryant, In re, 50 L. T. 450 — V.-C. B. Guarantee of Client's Debt.] — A solicitor who guarantees payment of a debt due from his client may, on default of payment by the client, be ordered by the court in a summary way to pay the amount himself, without any necessity on the part of the creditor to bring an action against the solicitor. Pass, In re, 35 W. R. 410 — D. Order for payment into Court on Trustee's Default.]— An order was made on a trustee to pay into court interest found due from him, and the balance, beyond his costs to be taxed, of capital money certified to have come to his hands. The capital money had been received by the trustee's solicitors as part of the trust estate. The order was made on statements implying that the trustee, who was totally unable to pay, was solvent. The trustee having made default in payment of the interest, the court made an order, notwithstanding the former order, that the solicitors should pay into court the capital come to their hands with interest. Staniar v. Evans, 34 Oh. D. 470 ; 56 L. J., Ch. 581 ; 56 L. T. 87 ; 35 W. R. 286— North, J. Defence setting up Tender— Payment out of Court — Liability to refund.] — In an action for wrongful dismissal, claiming >• year's salary in lieu of notice, the defendant pleaded that the plaintiff was only entitled to one month's notice ; or, in the alternative, three months ; that before action the defendant made tender of three months' salary, which the plaintiff refused ; that the defendant had paid the amount into court, and that it was enough to satisfy the plaintiff's claim. The request for lodgment in court con- tained a statement that the money was paid in 1745 SOLICITOR— LiaW/if?/ of. 1746 with a defence setting up tender. The plaintiff's solicitor, without obtaining an oixier, but on the written authority of the plaintiff, took the money out of court, and the plaintiff proceeded with the action. At the trial judgment was given for the defendant on the ground that the plaintiff was only entitled to one month's salary. The defendant applied for an order against the solicitor to refund so much of the money taken out of court as represented the difference between one month's and three months' salary. The solicitor had acted bonfl,fide in taking the money out of court, and had paid it over to the plaintiff before the application to make him refund it was made : — Held, that although the plaintiff ought not to have had the money out of court, because a defence of tender of the sum paid in could not be pleaded to a claim for unliquidated damages, yet under the circumstances the solicitor ought not to be ordered to refund it. Davys v. Richardson, 21 Q. B. D. 202 ; 57 L. J.. Q. B. 409 ; 59 L. T. 765 ; 36 W. R. 728— C. A. Honey wrongly paid out of Court — Forged Affidavit.] — In an administration action a fund belonging to the children of M. who should attain twenty-one or marry was carried over to " the account of the issue or children of M. deceased." B., managing clerk of the firm of solicitors conducting the action, knew that M. died leaving one daughter, who would attain twenty-one in December, 1886. He retained L. as solicitor on behalf of the daughter to get the fund out, saying he had authority. A summons was taken out in chambers, and B. having pro- duced an affidavit that the daughter was of age, an order was made by the chief clerk on the 28th January, 1884, for transfer and payment to the daughter. B. got the usual form of power of attorney from the Paymaster-General, and it was apparently executed by the daughter of M. in favour of L., but in reality it was forged. L. obtained payment, and after deducting one-half of one-sixth of the fund and other expenses, pursuant to an agreement between him and B., paid the remainder to B. on an authority appa- rently signed by the daughter of M., but really forged. L. never saw the daughter of M., and had no communication with her. The daughter of M. never saw B., and never gave any authority to B. B. absconded. In December, 1886, when the daughter of M. attained twenty-one, she pre- sented a petition for a certificate that the fund might be replaced out of the Consolidated Fund. The petition was served upon L. : — Held, that the order of the 28th January, 1884, must be dischai'ged, and an order now be made that the sums, and such farther sums as would have been standing to the credit of the account, if the order of the 28th January, 1884, had not been made, should be respectively transferred and paid to the petitioner, and that L. should within two months from the date of the present order pay into court to the account of the Paymaster- General the said sums : — Held, that such costs of the petitioner as would necessarily have been incurred if the petitioner had been applying for payment to her of the funds which would have been standing to the credit of the account if the order of the 28th January, 1884, had not been made, must come out of the fund, or be paid by the petitioner, and L. would be ordered to pay all the other costs of the proceedings. Slater v. Mater, 58 L. T. 149— Kay, J. Negligence — Omission to procure Investment of Fnrchase-money— liability to Person not a Client.] — An order was obtained by the solicitor for the plaintiff that the purchaser of property, sold under an order of the court in an action, should pay his purchase-money into court, and that the money when paid in should be invested in Consols. The plaintiff had the conduct of the sale. The money was paid into court by the purchaser, but the plaintiff's solicitor omitted to leave with the paymaster the necessary re- quest for its investment, and consequently the investment was not made. On the further con- sideration of the action it was ordered that the balance of the purchase-money, after the pay- ment of certain costs, should be paid to the receiver in tbe action, in part satisfaction of a balance due to him. The carriage of the order was given to the receiver, and he then discovered that the purchase-money had not been invested. He took out a summons, asking that the plain- tiff's solicitor might be ordered to pay to him the amount of interest lost by the non-invest- ment of the purchase-money : — Held, that the solicitor, as the officer of the court having the conduct of the sale, was responsible not only to his client but to the court for the due discharge of his duty, and that he must make good to the person entitled the loss of interest, but that he was entitled to a set-off in respect of a gain which had resulted from a, fall in the price of Consols between the time when the investment ought to have been made and the date of the order on further consideration, and that this liability could be enforced by summons in the action. The solicitor was ordered to pay the costs of the summons, though on allowing the set-off, it appeared that the amount to be paid by the solicitor would be only bl. 8«. 6(i. Batten V. Wedgwood Coal and Iron Company, 31 Ch. D. 346 ; 55 L. J., Ch. 396 ; 54 L. T. 245 ; 34 W. R. 228— Pearson, J. e. Delivery up of Dociunents. In what Cases.] — The court will not sum- marily order a solicitor to deliver up a deed to his client unless it be clearly shown not only that his solicitor has no lien upon it, but that he is holding it for the applicant alone, and as his solicitor. Coieldick, Mx parte, 12 Q. B. D. 149 ; 49 L. T. 741 ; 32 W. R. 239— C. A. Payment into Court of Security.] — The court has jurisdiction, upon payment into court, or giving security for a sum sufficient to answer the solicitor's demand, to order before taxation delivery up by a solicitor of the client's papers, where retention by the solicitor of the papers on which he claims a lien would embarrass the client in the prosecution or defence of pending actions. Quaere (per Lindley, L. J.), whether tbe jurisdiction is not extended by Ord. L. r. 8. Galland, In re, 31 Ch. D. 296 ; 55 L. J., Ch. 478 ; 53 L. T. 921 ; 34 W. R. 158— C. A. 2. FOR NEGLIGENCE. Sestrictive Covenant.] — A solicitor was con- sulted by a lessee of premises with reference to the building of a wall, to the erection of which 1747 BOIACITOB.— Liability of. 1748 on the, demised premises his lessor objected. The' lease was shown to the solicitor. The solicitor made no inquiries as to whether there was any objection to building the wall, other than what might be contained in the lease. The land was subject to a restrictive covenant against any such erection in favour of the original vendors of the freehold, and the wall after, erection had to be pulled down : — Held, that the solicitor had been guilty of no negli- gence. Pitman v. Fi'ancis, 1 C. & B. 355-^ Mathew, J. Mortgage — Insufficient Security — Statute of Limitations.] — A mortgage was made through a solicitor and proved to be an insufficient security. More than six years afterwards an action was brought, by the client against the executor of the solicitor claiming damages as lor the wilful default of the solicitor : — Held, on the facts, that the client had approved of the mortgage, and that the solicitor merely did the legal part of the business and was not in the position of trustee, and therefore that the Statute of Limi- tations applied. Sooiy v. Watson, 39 Ch. D. 178 ; 57 L. J., Ch. 865 ;' 58 L. T. 943 ; 36 W. E. 764— Kekewich, J. A solicitor in advancing money on mortgage may be employed, (1) to invest in a particular mortgage ; (2) to find securities to be approved by the client and then invest the money ; (3) to find securities and invest the money, the client taking little or no part in the business. In an action for negligence against the solicitors, the Statute of Limitations is a good defence in the first case and also in the second case if the client has approved of the mortgage, no relation of trustee and cestui que trust then existing between them. II. — r— Misrepresentation of Adequacy of Se- curity — Accounts.] — P., who was a solicitor, had acted as agent for the late husband of M. in several matters of business, including invest- ments of money. M. took out administration to her husband, and placed the administration of his assets in the hands of P. as her agent. P. collected the personal estate, and received large sums on foot of it. He acted not only as solicitor, but as general agent for M., and furnished her with accounts of his receipts and disbursements. While acting as agent for M.in 1871, P. invested 1,500Z. on mortgage to H., upon security which proved to be valueless. There was no evidence that P. was authorised to lend upon this or on any special security. P. acted as solicitor both for M. and for H. in the matter of the loan. The interest was paid for some years on the 1,500Z., but afterwards H. ceased to pay any interest. Proceedings were taken and expenses were incurred by M. in endeavouring to realise the security, which proved to be fruitless. P. having died, proceedings were taken by his ad- ministratrix to administer his real and personal estate in the Chancery Division. M. . in this action claimed as creditor the 1,500Z. and arrears of interest thereon, and the costs of the pro- ceedings to realise the security ; first, as for damages sustained by negligence on the part of P. as her solicitor in the investment of the money ; secondly, for damages for false repre- sentations by P. that, the security was adequate ; thirdly, as. for money due by P. on foot of sums received by him for her use, and for which he undertook to find securities as her agent and. trustee, and which were unaccounted for by him ; and of which and all other dealings between her and P., as her agent and trustee, she sought an account :— Held, that M. was entitled to have an account taken of the dealings between herself and P., as between principal and agent ; that there was a fiduciary relation between P. and M. which precluded the personal . representative of P. from relying on the Statute of Limitations as an answer to M.'s claim, but that the claim put forward by M. for damages for negligence and for misrepresentation of the adequacy of the security was not now open to M. Power r. Power, 13 L. B., Ir. 281— V. C. Where there is not merely an agency between the parties, but also a superadded fiduciary rela- tion, the remedy of the principal, who is then also the cestui que trust, is not one arising merely from contract, or duty springing from such con- tract, where a common law liability would alone exist, but is one to be dealt with on the equitable relation of trustee and cestui que trust. 11. Liability to Co-Trustee.] — -In an action against trustees, the court held that the invest- ments were improper ; that the trustees had been guilty of negligence in not making inquiries as to the particulars, and in not giving proper instructions to the valuers, and in acting upon valuations which under the circumstances they ought not to have acted upon, and they were jointly and severally liable for the money losL One of the trustees,- A., was a solicitor, autho- rised to make proifessional charges for work done for the trust. The other was the widow c^ the testator, and the tenant for life under his will of the trust funds. A. took the more active part in making the investments, and was paid costs for his professional work, charging scale fees both for negotiating the loans, deducing the title, and preparing and completing the mort- gages ; and he did not, in the opinion of the court, communicate what he did to his co-trustee in such a way as to enable her to exercise her judgment upon the investments, and make them her acts as well as his own : — Held, that A. had undertaken to find proper investments, and that the widow had joined in advancing the fund on the faith that the investments were proper ones which had been looked into by A., as solicitor ; that she had been misled by him, and he had been guilty of negligence in his duty as a solici- tor ; and that, as between A. and the widow, A. was primarily liable for the breach of trust. Partington, In re, Partington v. Allen, 57 L. T. 654— Stirling, J. Deed settled by Court.] — A solicitor may be guilty of such negligence in respefit to a deed settled in chambers as to make him liable to his client, notwithstanding that the deed professes to be a deed settled by the court. Stanford v. Rolcrts, 26 Ch. D. 155 ; 53 L. J., Ch. 338 ; 50 L. T. 147 ; 32 W. E. 404 ; 48 J. P. 692— Kay, J. Power of Master to disallow Costs caused by.] — See Massey and Carey, In re, post, col. 1776. 3. IN OTHEE GASES. Undertaking as to Costs. ] —Where the soli- citors of the promoters of an act of parliament, 1749 SOLICIT OE—Cosfe. 1750 whereby a company is created and empowered to raise capital and carry out works, and, if they so resolve, to raise separate capital for and cany out separately certain portions of such works as a separate undertaking, agree to pay certain claims out of the first capital raised by the com- pany and the company duly raise capital for the separate undertaking and none other, the soli- citors are not liable under the agreement. Allan V. Regent's Canal, O'lty and Doolts Railway, 54 L. J., Q. B. 201— Mathew, J. Reversed in 0. A. Liability to account — Treasury Prosecution by local Solicitors.] — When local solicitors are retained by the Treasury, to conduct prosecutions on their behalf, such local solicitors are agents for the Treasury, and are therefore bound to ac- count to the Treasury for any sums of money received in respect of costs, and to pay over to the Treasury the difference between the sums so received as costs and the sum allowed them on taxation. Parlcinson, In re, 56 L. T. 715 — D. Constructive Trustee.] — A solicitor can- not be made liable as a constructive trustee to account for money paid to him in respect of his costs, unless he can be brought within the doctrine with reference to other strangers who are not themselves trustees, but who are liable in a proper case to be made to account as con- structive trustees, and a stranger receiving money from the trustee which he knows to be part of the trust estate is not liable as a con- s,tmctive trustee unless facts are brought home to him which show that to his knowledge the money is being applied in a manner inconsistent with the trust, so that it must be made out that the solicitor was either party to a fraud or party to a breach of trust on the part of the trustee. Blnndell, In, re, Blundell v. BlwndcU, 40 Ch. D. 370; -57 L. J., Ch. 730; 58 L. T. 983 ; 36 W. R. 779— Stirling, J. Liability to Company as Promoter.] — See Great WJieal Polgooth, In re, ante, col. 355. Statute of Limitations — Trustee.] — See Limi- tations, Statute of, I., 1. Joinder of for Purposes of Discovery or Costs.] — The court will not allow the foinder of solicitors or others as defendants against whom no further relief is sought beyond discovery or payment of costs. Rnrstall v. Beyfus, 26 Ch. D. 35 ; 53 L. J., Ch. 565 ; 50 L. T. 542 ; 32 W. E. 418— C. A. 4. WHAT ACTS OF PAETNEE BINDING ON FIEM. ITegligence and Fraud.] — In May, 1869, P., a member of a firm of solicitors, suggested to the plaintiff, as an investment for a sum of 3,o57Z. to which he was entitled in court, a mortgage of a leasehold property at E., and made certain mis- representations with respect to the property. In July the money was paid out of court to the firm on behalf of the plaintiff, and the balance, after certain deductions for the costs of payment out, was shortly afterwards paid away by two cheques signed by the firm for 33Z. and 3,400Z. respec- tively. P. sent the 33Z. to the plaintiff, and in- formed him that the 3,400Z was invested upon the security at E. as arranged, and in August, 1869, he sent to the plaintiff a memorandum of deposit to the effect that he held the title-deeds as solicitor for and on behalf of the plaintiff to secure 3,400Z. In 1875 P. executed a legal mort- gage of the same ■ property >to H. without disr. closing the plaintiff's equitable charge. The pro- perty was insufficient to satisfy both .charges, P. continued to pay^ interest to the plaintiff on his investment until 1881, when his fraud was discovered and he absconded. The fii'm did not make any charge to the plaintiff for investment,, but their bill of costs was limited to the costs inci- dental to the payment of the money out of court. In 1884 the plaintiff brought an action against the. firm to recover from them the 3,400Z. lostby P.'s- fraud : — Held, first, that the firm was guilty, of negligence, in the transactions of . 1 869, in not seeing that the plaintiff's ■ money was investecB upon a proper mortgage, but :that that claim was barred by the statute ; secondly, that they were- not liable for P.'s misrepresentations, there being: no sufficient proof that the plaintiff relied upon them ; thirdly, that they were not liable for P.'s- fraud in 1875, as it Was not committed in the course of the firm's business. The fact that a representation is by its nature calculated to. induce a person to enter into a contract does not raise a presumption of law that he relied upon such repjesentation. Huglies v, Tiiyisden, 55. L. J., Ch. 481 ; 54 L. T. 570 ; 34 W. E. 498— North, J. Deposit of Bonds — Scope of Business.] — Trus> tees under a wQl deposited certain bonds payable to bearer with P., a member of the firm of solici- tors who were acting for the estate. His partners had no knowledge of this, but letters referring to- the bonds were copied in the letter-book of the firm and were charged for in the bill of costs of the firm, and the bonds were included in a state- ment of account which the firm made out for the trustees. P. paid some of the interest of the bonds by cheques of the firm, but on feach oc- casion recouped the firm by a cheque for the- same amount on his private account. P. mis- appropriated the bonds : — Held, that the cheques, letters and entries were too ambiguous, to affect the other partners with acquiescence in P. having the custody of the bonds as part of the partnership business, and that they could not, be held liable for their misappropriation. Har-, man v. Jolmson (2 E. & B. 61) and Bwndonald (Barl of ) V. Masterman (7 L. E. Eq. 504) con- sidered. Cleatlier v. Twisden, 28 Ch. D. 340 ;. 54 L. J., Ch. 408 ; 52 L. T. 330 ; 33 W. E. 435— C. A. VI. COSTS. 1. BILL OF COSTS. a. Delivery of. Unsigned Bill— Alteration after Delivery.] — A solicitor cannot, after delivery of a bill of costs, and objection taken to the amounts of the: charges therein contained, even though the bill be unsigned, withdraw the bill from taxation, and substitute another in which the charges are reduced. Jones, In re, Mng, Ex parte,< bi'li. T.. 648— D. Lump Sum in Bill Delivered — Subsequent 1761 SOLICITOE— Co«te. 1752 Alteration.] — Solicitors having brought in, under an order lor taxation, a bill of costs containing an item in » lump of 1,000Z. for the costs, charges, and expenses of an action, it •was held that the agreement to pay this sum was invalid, because it was not in writing :— Held, that they were entitled to bring in for taxation a bill containing the particulai-s of these charges, so long as the charges did not exceed 1,000Z. Russdll, In re, 55 L. T. 71— C. A. Condition for Withdrawal — Delivery of Second Bill.] — A solicitor may, when sending in his bill ■of costs to his client, reserve to himself the right to withdraw or alter it on condition, provided the condition is fully and clearly stated to the client ; but if the solicitor has sent in his bill without any condition, or with a condition which he could not fairly impose, he cannot afterwards withdraw it or send in an amended bill. Thomp- son, In re, 30 Ch. D. 441 ; 55 L. J., Ch. 138 ; 53 L. T. 479 ; 34 W. R. 112— C. A. A firm of solicitors, on being pressed by their clients to send in their bill of costs, delivered a bill accompanied by a letter saying that there were certain charges which, owing to haste, had not been included in the bill, but that they were willing to accept a stated sum in full discharge, though, if such sum was not paid within eight days, they reserved to themselves the right to withdraw the bill and deliver another. The clients, however, insisted on being furnished with the particulars of further charges, and the solicitors wrote withdrawing the bill. The clients then obtained a common order for taxa- tion of that bill, and for delivery and taxation of a further bill. On motion by the solicitors. Bacon, V.-C, discharged the common order on the ground that no bill had been " delivered " within the meaning of s. 37 of the Solicitors Act, 6 & 7 Vict. c. 73 ; but ordered the solicitors to deliver a bill within fourteen days, such bill to be taxed. The solicitors, in pursuance of that order, delivered a second bill, but of a con- ■siderably less amount than the first, whereupon the clients appealed to reverse that order and to have it declared that the bill to be taxed was that first delivered : — Held, discharging the last- mentioned order, that the first bill was condi- tional, but that the condition was one which a solicitor could not impose on his client, and that therefore the original common order for taxation must stand. IT). To Third Parties — Withdrawal.] — On a sale of mortgaged property by the mortgagors, the mortgagees' solicitors rendered services for which they were entitled to be paid by the mortgagors, and the mortgagors' solicitors, acting on behalf of their clients, undertook to pay those charges. In the course of a correspondence between the solicitors, the mortgagees' solicitors mentioned a lump sum as the amount of their costs, and stated that their bill was not yet drafted, and they wished to know whether details were re- quired. The mortgagors' solicitors requested to have details, and the mortgagees' solicitors then sent their bill to them, and added that if further details were required they must furnish them. The parties could not agree as to the amount to be paid, and the mortgagors presented a petition for taxation : — Held, that the mortgagors' solicitors were acting within the scope of their employ- ment in obtaining the bill, and it could not now be withdrawn on the ground that it had been improperly delivered in being sent to the solici- tors, and not to the clients ; that it was not necessary that the bill should be delivered to the mortgagees to enable the mortgagors to tax it ; that the document delivered was in fact a bill, and the details which were offered were not necessary to complete it, but might have been given on the taxation. Kellocli, In i-c, 56 L. T. 887 ; 35 W. B. 695— Stirling, J. Power of Court to order.] — Under s. 396 of the Victorian Common Law Procedure Act, the court has power to order delivery of his bill by an attorney, whether or not it has been paid, and whether or not it is one which it would have jurisdiction to refer to taxation. [See 6 & 7 Vict. c. 73, ss. 37 & 41.] Duffett v. McEcoy, 10 App. Cas. 300 ; 54 L. J., P. C. 2.") ; 52 L. T. 633 —P.O. Business not Transacted in Court- Jurisdiction.] — The jurisdiction given by s. 37 of the Solicitors Act, 1843, to order delivery of a solicitor's bill of costs where no part of the business charged for has been transacted in any court of law or equity, was given to the Lord Chancellor and Master of the Kolls as Judges of the Court of Chancery, and was transferred to the High Court of Justice by s. 16 of the Judica- ture Act, 1873. The Judges of the Queen's Bench Division, therefore have jurisdiction to order delivery of a bill of costs in such a case ; though the application for delivery ought to be made in the Chancery Division (Lord Esher, M.E., dissenting). S. 37 of the Solicitors Act, 1843, gave the jurisdiction to the Lord Chancellor and the Master of the Rolls, not as judges of the Court of Chancery, but in respect of their in- dependent offices as Lord Chancellor and Master of the Rolls, and that jurisdiction has not been transferred by any subsequent legislation. By Lord Esher, M.R. Pollard, In re, 20 Q. B. D. 656 ; 57 L. J., Q. B. 273 ; 59 L. T. 96 ; 36 W. E. 515— C. A. Reversing 52 J. P. 85— D. b. Contents of. Scandalous Matter.] — The general jurisdiction of the court to prevent proceedings before it being made the vehicle of scandal or impertin- ence extends to a bill of costs delivered, and, accordingly, entries in a bill of costs which contain scandalous matter will be ordered to be struck out. MilU'i; la re, French, In re. Love V. mils, 54 L. J., Ch. 205 ; 51 L. T. 853 ; 33 W. R. 210— Kay, J. Substantial Part improperly described.] — Where a substantial part of a bill of costs is improperly set out and described, the whole bill is not bad, but the solicitor can recover only those items that are properly described. Where, therefore, in a bill of costs for 5\l. 16s. 6d., a lump charge of 38?. 10s. was made for a number of items lumped together, and the remaining items, amounting to 13Z. 6s. 6d., were properly described, it was held that the solicitor could recover upon those items that were properly described. Dicta in Haigh v. Omsey (7 B. & B. 578) followed. Jiluke v. Hummell, 51 L. T. 430; 1 C. & E. 345— Denman, J. 1753 SOLICITOR— Cosis. 1754 c. Agrreements as to Costs. Verbal.] — Since the Attorney and Solicitors Act, 1870, a verbal agreement by a client to pay his solicitor a lump sum in discharge of past costs is not binding on the client. Mnssell, In re, 30 Ch. D. 114 ; 54 L. J., Ch. 948 ; 52 L. T. 794 ; 33 W. E. 815— Kay, J. Fair and Seasonable.] — A solicitor agreed to conduct certain bankruptcy proceedings on the terms that his costs should not exceed 10^ In the course of the proceedings his clients left him and employed other solicitors, and he sent in a bill of costs for a larger amount than 101. The county court judge sittingin bankruptcy declared the agreement to be void, because it did not contain a provision that the solicitor originally employed might conduct the bankruptcy pro- ceedings to an end : — Held, that the order was wrong on the ground that the agreement was fair and reasonable, and that the solicitor could have gained no advantage if he had been allowed to prosecute the proceedings in bank- ruptcy to a conclusion, since under no circum- stances could he have obtained costs beyond the amount of lOZ. out of the estate. Paytoa, Ex parte, Owen, In re, 52 L. T. 628 ; 2 M. B. E. 87 — D. d. Interest on. Disbursements and Costs — Demand from Client] — By General Ord. VII. under the Solicitors" Bemuneration Act, 1881 (44 & 45 Vict. c. 44), s. 5, the interest which a solicitor is entitled to recover under the order on the amount due on business transacted by him is not to commence till the amount due is ascertained, either by agreement or taxation — and it is provided that a solicitor may charge interest at 4 per cent, per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from demand from the client. A solicitor delivered his bUl to a client without claiming interest. The bill was taxed, and the client paid the amount allowed on taxation. On such amount being paid the solicitor claimed interest thereon at 4 per cent, from one month from the date of the delivery of the bill : — Held, that the solicitor was entitled to such interest. Blair v. Cordner, 19 Q. B. D. 516 ; 5G L. J., Q. B. 642 ; 36 W. E. 109— D. Appropriation of Payment.] — See liar- riso/i, In re, post, col. 1781. e. Taxation of. i. Who Mititled to Order. £x parte — Special Agreement — Non-profes- sional Work,] — Where an agreement has been made for the remuneration of a solicitor, and the solicitor alleges that the remuneration was for non-professional work, the person chargeable cannot obtain the ex parte order for the delivery and taxation of the bill of costs. The Solicitors' Bemuneration Act, 1881, s. 8, has made no difference in the practice in this respect. Inder- wicl. In re. 25 Ch. D. 279 ; 54 L. J., Ch. 72 ; 50 L. T. 221 ; 32 W. E. 541— C. A. Solioitor to Gnardlans— Taxation by Clerk of the Peace.] — When a solicitor is employed by the guardians of the poor, the taxation of his bill of costs by the clerk of the peace under- the Poor Law Amendment Act, 1844, is not final and conclusive against him, and he is entitled to an order for taxation as between solicitor and client, under the Solicitors Act^ 1843. Sonthampton Guardians v. Bell, 21 Q. B. D. 297; 59 L. T. 181 ; 36 W. E. 924 ; 52 J. P. 567— D. Trustee in Bankruptcy.] — The trustee ia bankruptcy of a mortgagor is entitled to an order to tax, under 6 and 7 Vict. c. 73, the bill of costs of the solicitor of the morta;age6 incurred in selling the property under a power of sale. Marsh, In re (15 Q. B. D. 340) distinguished. AlUngham, In re, 32 Ch. D. 36 j 55 L. J., Ch. 800 ; 54 L. T. 905 ; 34 W. E. 619— C. A. " Assignee " of Costs.] — Whether an assignee of costs due to a solicitor is such an '■ assignee " of the solicitor as is, under s. 37 of the act 6 & 7 Vict. c. 73, entitled to obtain a taxation of the costs, qusere. Ward, In re, 28 Ch. D. 719 ; 54 L. J., Ch. 508 ; 33 W. E. 783— Pearson, J. ii. Practice Generally. Petitioner out of Jurisdiction.] — A petitioner, in a matter under the Solicitors Act (12 & 13 Vict. 0. 53), resident out of the jurisdiction, was ordered to give security for the costs in the matter, and a balance claimed to be due to the respondent. Cornwall, In re, 15 L. E., Ir. 144 — M. E. Summons — Service out of the Jurisdiction. ]— A summons to tax a bill of costs, not being a writ of summons within the meaning of Ord. XI. r. 1, leave to serve it out of the jurisdiction will not be granted. Brandon, Mv parte, Bouron, In re, 54 L. T. 128 ; 34 W. E. 352— D. Petition — Signature.] — London solicitors acting for country solicitors, duly authorised, obtained an order for taxation of costs. The names of the London solicitors were indorsed on the petition for taxation as principals. The order for taxation was discharged on the motion of the client, without costs. Scholes, In re, 32 Ch. D. 245 ; 55 L. J., Ch. 626 ; 54 L. T. 466 ; 34 W. E. 515— Pearson, J. Petition or Summons.] — The application by mortgagors to tax the bill of the mortgagees* solicitors ought to be made by summons, and not by petition, but it can be dealt with under Order LXX. r. 1, on the terms that the petitioners should pay the difference between the costs of a petition and those of an adjourned summons. Kelloelc, In re, 56 L. T. 887 ; 35 W. E. 695— Stirling, J. Common Order or Special Order.] — Where solicitors delivered a first bill which was after- wards withdrawn, the clients should, instead of obtaining the common order to tax, obtain a special order on petition raising the question as 1755 SOLICITOR— Cosfe. 1756 to the rigjit of the solioitars to withdraw their bill. Thompson,, In re, 30 Ch. D. 441 ; 55 L. J., Ch. 138 ; 53 L. T. 479 ; 34 W. E. 112— C. A. Common Order — Retainer.] — The question of retainer can be raised on a common order to tax •as to particular items or heads ; but not as to the whole of a bill of costs. A bill of costs was -divided into general costs and costs relating to ■a particular matter. On a common order to tax : — Held, that the whole of the latter, except two small items, having been incurred without authority, were properly taxed off. Ilcrhert, In re, 34 Ch. D. 504 ; 56 L. J., Ch. 719 ; 56 L. T. 522 ; 35 "W. E. 606 -North, J. Obtained by Solieitor — Retainer.] — Where a client obtains the common ex parte order for the taxation of a solicitor's bill of costs, he cannot dispute his retainer to the extent of the whole of the bill, though he may do so in respect of particular items in the bill, the practice being to require the client on his .application for the order to make an admission -of the retainer ; but where a solicitor obtains the common ex parte order the client is not bound by the allegation of retainer contained in the petition, and consequently may object to «vei7 item in the bill on the ground of there having been no retainer. Consequently it is no objection to the common order when obtained by a solicitor that he knew that the clients <3lsputed his retainer as to the whole bill. Jones, In re, 36 Ch. D. 105 ; 56 L. J., Ch. 720 ; 57 L. T. 26 ; 35 W. E. 649— Stirling, J. Third-party Order— Special Expenses autho- -Tised by Client primarily liable. ] — By an agree- ment, dated the 15th July, 1885, the Willenhall Local Board agreed with the Earl of Lichiield -and Lord Anson, his eldest son, for the purchase of land, part of their entailed estates, at a price to be fixed by arbitration. The agreement con- tained a clause that the local board should pay all the costs of the reference to arbitration. The -arbitration took place, and the purchase was completed. The vendora' solicitors sent in their bill of costs to the board, and the board obtained the usual order for taxation on the petition of a third party liable to pay under s. 38 of the Attorneys and Solicitors Act, 1843, which pro- vides that the third party shall stand in the same position as the original client. The order for taxation, which was in the common form, contained a recital that the petitioners sub- mitted to pay what should be found due upon taxation'. The bill of costs contained a number of heavy fees paid to eminent surveyors who had been called as witnesses for the vendors at the arbitration. The local board objected to these payments as excessive. The taxing-master at first marked them for reduction, but, on the vendors" solicitors producing a letter from Lord Anson, stating that he had acted for his father in the matter,' and had authorised the calling of the surveyors in question, and approved the payments' made to them, the taxing-master held that he was precluded from reducing the items. The local board took out a summons to review the taxation : — Held, that, by taking the usual third-party order for taxation under s. 38 of the act, the local- board had precluded themselves from taking any objection to the bill of costs, which could not have been taken bythe vendors ; and that, though by the agreement the board were only bound to pay reasonable costs, they could not, on taxation, object to anything au- thorised by the vendors as unreasonable. Their proper course, if the payments were unreason- able, was not to apply for taxation, but to refuse to pay, and leave the vendors to bring an action or refer the matter to arbitration. Holliday and Godlee, In re, 58 L. T. 301— North, J. One Bill out of Several.] — An assignee of costs cannot obtain an order of course to tax one bill of costs out of several, even if that bill only has been assigned to him. An order to tax one bill out of several alone can only be obtained by means of a special application. Ward, In re, 28 Ch, D. 719 ; 54 L. J., Ch. 508 ; 33 W. E. 783— Pearson, J. Part of Bill — Country Solicitor and London Agent.] — London agents delivered to a country solicitor their bill of agency charges for a year. The bill included their charges relating to a number of distinct actions and matters in which they acted as agents for the solicitor. The charges relating to each distinct action or matter, were made outseparately under the head of that action or matter, though the whole of the charges were comprised in one bill : — Held, that the bill thus delivered was one bill, and that the country solicitor was not entitled to have the charges relating to one of the actions taxed without having the whole bill taxed ; but held, on appeal, that, notwithstanding s. 37 of the Solicitors Act, the court under its general jurisdiction can order taxation of part of a bill, and that in this case it was right that such jurisdiction should be exercised, but only upon termsiwhich would prevent any injustice being done. I Taxation of the charges relating ■ to the one action was therefore ordered, upon the appellants giving an undertaking to pay within a short limited time (subject to an undertaking to refund) the balance claimed by the agents to be due to them for charges and disbursements, and the appellants, who had not previously offered any undertaking, were ordered to pay the costs of the appeal. Johnson and Weatherall, In re, 37 Ch. D. 433 ; 57 L. J., Ch. 306 ; 58 L. T. 692 ; S6 W. E. 374— C. A. Power to cross-examine Witnesses.] — On a taxatipn between solicitor and client, the master, after perusing an affidavit of the solicitor and an affidavit of the client denying the facts, refused to allow the solicitor to submit an affidavit in reply,, or to cross-examine the client : — Held, that under such circumstances, the master should allow further evidence, and should take viva voce evidence under the powers given him by Ord. LXV. 1. 27, sub-r. 26. Brovm, Ex parte, ; In re, 35 W. E. 546— D. iii. After Payment. Retention of Costs by Solicitor. ]— From Feb- ruary- 1874, to August, 1879, S. had acted as the solicitor and man of business of B., a married woman, and during this period had wound up her former husband's estate, collected her rents, and managed her estates; lent her money, and negotiated mortgages for her. In the course of these ^transactions thevarious items of receipts and payments on her behalf, including costs 1757 SOLICITOK— Cosfs. 1758 and professional charges, were entei-ed in a book of accounts kept by S. Copies of these accounts were sent to B. from time to time, and one of the mortgages by B. to S. contained a recital that they had been gone through and settled. In August, 1879, when a mortgage was negotiated from a third person' of sufficient amount to pay ofE B.'s debt to S., the accounts were gone through and explained to B., when S. retained the amount due to him for advances, and for his costs and professional charges, out of the mortgage money, and carried the balance to her credit in the book of accounts. B. thereupon signed the account. S. continued to act for B. as before down to the end of 1885. B. had no independent advice when she signed the account in August, 1879. On an application by B. and her husband for the delivery and consequent taxation of bills of costs from February, 1874, to August, 1879 :— Held, following Street, In re (10 L. R., Eq. 165), that there had been no payment within the meaning of 6 & 7 Vict. c. 73, s. 41, and that B. was entitled to an order for delivery of proper bills of costs for the period required, and a consequent taxation, notwithstanding the lapse of time and the signature by B. of the ac- counts. Stoyclon, In re. Baker, Ex parte, 56 L. J., Ch. 420 ; 56 L. T. 355 ; 51 J. P. 565— Chitty, J. Special Circumstances — ^Application by Cestui que Trust.] — Quasre, whether the provision in s. 41 of the Solicitors Act, 1843, as to the neces- sity of showing " special circumstances " on an application for taxation of a bill of costs after payment, applies in the case of an application by a cestui que trust under s. 39 for taxation of a bill paid by trustees. Chowne, In re, 52 L. T. 75— C. A. Discretion of Court.] — Whether the pro- vision applies or not, the court, on an applica- tion under s. 39, has a discretion as to ordering taxation, even where special circumstances are shown. Where overcharges of only 21. or 3Z. were shown, and no pressure or fraud was proved, the court declined to exercise its dis- cretion by ordering taxation. li. Overcharge amounting to Fraud — Pres- sure.] — ^After a solicitor's bill had been paid, an order for the taxation of it will not be made, unless special circumstances — as overcharges such as amount to fraud, or which are accompanied by. pressure — can be shown, which, in the opinion of the judge, appear to make it proper that the bill should be taxed. Munng and Long den. In re, 50 L. T. 356— Kay, J. See also Eleij, In re, post, col. 1768. A tenant having an option of purchase of the fee at a given price on the terms of his paying all the vendor's costs, gave notice in December, 1882, of his exercise of the option, and stated that he should not require an abstract of title. The time for completion was the 25th of March, 1883, but it was arranged for the tenant's con- venience that the completion should be six weeks earlier, and that the property should be ■conveyed in two lots. He sent his draft con- veyances for perusal' before the end Of De- cember. On the 2nd of February, 1883, the iveudor's solicitors sent in their bill of costs, in which they charged 30s. per cent, on the pur- chase-money of each lot. The purchaser's solici- toi-s objected to these charges, but the vendor's solicitors refused to allow completion unless they were paid, and on the 14th of February the pur- chaser paid them under protest, and completed the purchase. After this he applied for taxation of the bill : — Held, that, having regard to the dates, there was no pressure, and that there was no overcharge amounting to fraud, and that there were therefore no special circumstances to authorise taxation after payment. Laeey and Sou, In re, 25 Ch. D. 301 ; 53 L. J., Ch. 287 ; 49 L. T. 755 ; 32 W. E. 233— C. A. A foreclosure action having been commenced, and judgment for foreclosure having been ob- tained but not made absolute, the mortgagee, on the 19th June, 1882, paid the mortgagee's solici- tor 263Z., which was alleged to be due for princi- pal, interest, and costs. There was no taxation or delivery of the bill of costs. In February, 1883, the mortgagee took out a summons for delivery and taxation of the bill of costs : — Held, that, even if there had been payment to the solicitor within the meaning of the Solicitors Act, 1843, the mere pendency of the foreclosure action did not amount to pressure so as to entitle the mortgagee to taxation. Griffith Jones k Co., In re, 53 L. J.. Ch. 303 ; 50 L. T. 434 ; 32 W. E. 350— C. A. Mortgagees for 2,000^ were proceeding to sell the mortgaged estates. On the 1st of September, S., the mortgagor's solicitor, wrote to B., the mortgagee's solicitor, informing him that he had found a transferee, and proposing to complete the transfer on the 3rd. B. wrote back pro- posing the 10th for completion, and afterwards postponed the appointment to the 13th. His bill of costs, which amounted with surveyor's charges to more than 450Z., was received by S. on the 9th. On that day S. wrote to B., saying that the bill of costs appeared excessive, and would require to be carefully gone into, but did not propose to postpone the completion. On the 12th S. took with him a written pro- test against the bill, and had two interviews with B., at which arrangements were made for completion. S. did not mention the subject of costs at either interview, but deposed that he had intended to do so at a third appointment on the same day, which B. did not keep. On the 13th the parties met, the transfer was completed, and the bill of costs paid, B. refusing to part with the deeds unless it was paid. S. delivered his written protest, and it appeared that B. expressed willingness to reconsider his bill if any item were shown to be erroneous, but said nothing to the effect that it was to be treated as open to taxation. The mortgagor applied for taxation, alleging pressure and overcharge, but not re- ferring to any particular items of overcharge. Bacon, V.-C, made an order for taxation, and B. appealed : — Held, by Cotton and Fry, L. JJ. (dissentiente, Bowen, L.J.), that the order for taxation must be discharged, for that as the shortness of the interval between the delivery of the bill and the time fixed for completion did not arise from any act of the mortgagee's soli- citor, but was owing only to the desire of the mortgagor for speedy completion, there was no pressure such as to justify taxation, though the case would have been ■ otherwise if the inort- gagee had been pressing for an early settlement. Boveott, In re, 29 Ch. D. 571; 55 L. J., Ch. 835 ; 52 L. T. 482 ; 34 W. R. 26— C. A; 1759 SOLICITOR— Cosfs. 1760 Held, by Bowen, L.J., that the Solicitors Act, 1843, 8. 41, authorises taxation after payment where there are special circumstances which, in the opinion of the judge, require the same; that there is no inflexible rule that the special cir- cumstances must be pressure with overcharge, or overcharge so gi'oss as to amount to fraud ; and that in the present case, as the parties did not at completion treat the bill as finally settled, and B. had taken advantage of the inconve- nience which a postponement of the settlement would have occasioned to the mortgagor, there were special circumstances justifying taxation. IV. Held, by Bowen, L.J., that where a bill is so large as to be redolent of overcharge it is not necessary that specific items of overcharge should be pointed out. li. Held, by Frj', L.J., that though the bill ap- peared excessive, the court could not treat over- charges as shown, unless specific items were pointed out on which it could exercise its judg- ment. IT). ■ ■ Common Mistake.] — Where a fee was paid under a common mistake of the .solicitor and client that the scale under the Solicitors' Remuneration Act applied, the court refused to accede to an application for an order for taxa- tion. Glasoodhie and Carlyle. In re, 52 L. T. 781— C. A. — — Costs incurred previously to Betainer — Adoption of Services by Client.] — A solicitor undertook,without retainer, certain investigations as to who were the next of kin of an intestate. These investigations were adopted and paid for by the administrator for whom the solicitor sub- sequently acted. A summons was taken out by another of the next of kin for taxation of the solicitor's bill of costs, to which the solicitor consented. The taxing-master was to be at liberty to state special circumstances. The taxing-master disallowed the costs of these preliminary investigations. On an application by the solicitor to be allowed such costs, the court directed that, subject to the amount over- paid being paid into court, there should be an inquiry as to what costs, if any, ought to be al- lowed the solicitor for the investigations (the majority of the next of kin being willing that they should be allowed), such order to be served on the next of kin.v The court was, however, of opinion that, under s. 41 of the Attorneys and Solicitors Act, 1843, it had jurisdiction, even in the absence of such willingness on the part of the next of kin to make the above order, inas- much as on the finding of the taxing-master there were " special circumstances " within the meaning of that enactment : — -But held, on appeal, that the judgment must be varied by striking out the direction for immediate pay- ment into court, the solicitors undertaking to repay any sum which might be disallowed as the result of the inquiry. Hill, In, re, 55 L. J., Ch. 871 ; 55 L. T. 456— C. A. iv. JVora tlian Twelve Months after Delivery. "Special Ciroumstauces."] — The "special cir- cumstances" which, under 6 & 7 Vict. c. 73, s. 37, allow a solicitor's bill of costs to be re- ferred for taxation, although twelve months have elapsed since it was delivered to the client, are not merely pressure and overcharge, or over- charge amounting to fraud. A judge has a dis- cretion in ordering the bill of costs to be taxed, if it contains items unreasonably large, or charges requiring explanatioh, or gross blunders. Semble, that the same principle ought to be applied to the taxation of a bill of costs which has been paid. Boycott, In re (supra) com- mented on. Norman, In re, Bradwell, Mx parte, 16 Q. B. D. 673 ; 55 L. J., Q. B. 202 ; 54 L. T. 143 ; 34 W. B. 313— C. A. Bills of costs delivered by a solicitor contained the following charges : — 735^. for the costs of a reference, lasting six days ; 83Z. for witnesses' expenses, none of which had been paid by the solicitor, but nearly the whole of which had been paid by the client ; and 71i. for shorthand notes of the proceedings at a reference where no pro- fessional shorthand writer had been employed, but the clerk to the solicitor had taken the notes, and it did not appear that the solicitor had given his clerk anj- part of the 71Z. charged. More than twelve months had elapsed since the bills were delivered : — Held, that these charges constituted " special circumstances " within the meaning of 6 & 7 Vict. c. 73, s. 37, which justified a judge in referring the bill for taxa- tion. Ih. Overoharge amonnting^ to Fraud.] — The charge by a mortgagor's solicitor to his client of a scale fee for " negotiating loan " in addi- tion to the procuration fee according to the scale paid to mortgagee's solicitor, is an over- charge amounting to fraud so as to entitle the client to an order to tax on application more than a year after delivery of the bill ; especi- ally when coupled with the fact that the solicitor by whom the overcharge was made had not complied with his client's instructions to get the bill taxed. Pylus, In re, 35 Ch. D. 568 ; 56 L. J., Ch. 921 ; 57 L. T. 362 ; 35 W. R. 770— Chitty, J. Country Solicitor and London Agent.] — London solicitors acted as agents in I^ndon for a country solicitor during the years 1877 to 1884 inclusive. The agency was terminated in 1884. During the period of the agency the London agents delivered to the country solici- tor, generally once a year but sometimes oftener, detailed bills of the charges which they claimed against him in each of the actions or other matters in which they had acted for him. They also delivered to him a cash account for each year, in which he was credited with aU payments made by him to them, and all mmeys received by them on his behalf, and was debited with all payments made by them to him or on his behalf, and with the gross amounts of the several bills of charges which had been de- livered. The balance appearing to be due from him on each account but the last was carried on to the next account. Some of the actions continued during several years, and one of them (JRhodes v. Jenkins) continued during the whole period of the agency, and was not then concluded. After the close of the agency the country solicitor claimed a taxation of the whole of the bills : — Held, by Pearson, J., tbat only those bills which had been delivered within twelve months could be taxed, and that the- earlier bills must be treated as having been settled in account and thus paid. Held, by the 1761 SOLICITOK— Cosfs. 1762 Court of Appeal, that the bills of costs in Mkodes T. Jenkins (to which the appeal was limited), notwithstanding the fact that all the costs in it had not yet been taxed, being in fact separate bills could not be treated as one con- tinuous bill. at the option of the country soli- citor, y^elson, In re, 30 Ch. D. 1 ; 54 L. J., Ch. 998 ; 53 L. T. 415 ; 33 W. E. 645— C. A. Charge for Counsel's Tees not yet paid.] — The London agents had charged the county solicitor with fees to counsel which had not yet been paid, but the country solicitor had not sup- plied them with sufficient funds to pay the fees : — Held, by Pearson, J., that this charge was not a circumstance sufficient to justify a taxation. n. At instance of Third Party.] — The words of the proviso at the end of s. 41 of the Solicitors Act, 1843, being express, apply to applications under s. 38. Dawson, In re (8 W. K. 554) not followed. Sm ith, In re, 32 W. E. 408— Chitty, J. V. Costs of Taxation. Offer by Solicitor to reduce the Amount — Cer- tifying special circumstances.] — C, a solicitor, sent in to executors a bill of costs for 83Z., writ- ing at the foot, " say 78Z.," and the 78i. was paid. The residuary legatee obtained an order to tax the bill, which was taxed at 662., being more than five-sixths of 78Z., but less than five-sixths of 83Z. The residuary legatee objected to certain items as excessive, and the taxing-master con- sidered that they were excessive ; but held that as the executors had authorised them, and ad- mitted their liability to pay them, the residuary legatee could not have them reduced : — Held, that the taxing-master was right in allowing these items ; that the bill must be treated as a bill for 181., from which less than one-sixth had been taxed off, and that the solicitor was entitled to the costs of the reference. But held, on appeal, that the bill delivered, within the mean- ing of 6 & 7 Vict. c. 73, s. 37, was a bill for 83Z., and that, as more than one-sixth had been taxed off, the solicitor must, according to that section, pay the costs of the reference ; the case not coming within the proviso giving the court a discretion where special circumstances are cer- tified. Carthew, In re, 27 Ch. D. 485 ; 54 L. J., Ch. 134 ; 51 L. T. 435 ; 32 W. E. 940— C. A. P., a solicitor, delivered a bill for 362Z., but stated that he would only claim 3202., and the 3202. only was entered in the cash account which he delivered to his clients. The clients obtained an order for taxation. The taxing-master taxed the bill at 2802., being more than five-sixths of 3202., but less than five-sixths of 3622., and cer- tified that he had allowed the solicitor the costs of the reference, as he considered that since he had never claimed more than 3202., the difference of 422. between this sum and the amount of the whole bill, ought to be deducted from the sums taxed off, thus reducing them to 402., which was less than a sixth of the sum he had claimed : — Held, that the solicitor must pay the costs of the reference. Held, on appeal, that special cir- cumstances were certified, so as to give the court a discretion as to the costs of the reference, but that the special circumstances were not such as to induce the court to depart from the general rule that the costs of the reference should follow the event of the taxation, and that in this case also, more' than one-sixth having been taxed off the 3622., the solicitor must pay the costs of the reference. Pmdl, In re, 27 Ch. D. 485 ; 54 L. J., Ch. 134 ; 51 L. T. 435 ; 32 W. E. 940— C. A. Bill delivered — Payment of Less Sum in Dis- charge.] — This was a summons on behalf of a client for review of taxation, and that the costs of taxation might be allowed to the client and disallowed to the solicitors. The solicitors had paid themselves 202. out of money of their client in their hands in full discharge of their bill of costs. After this the client changed his solici- tors and required a bill of costs, and obtained a common order to tax the costs of his former solicitors. The bill was delivered to him, and soon after the solicitors moved the court to cancel the order, but the motion was refused. The bill delivered amounted to 262. Ss. 3d., and was reduced, on taxation, to 202. 16*. Id., more than one-sixth being taxed off. The taxing- master certified that the solicitors were entitled to all the costs of the taxation, on the ground that the sum allowed on taxation was greater than the sum accepted by the solicitors in f uJ 1 discharge : — Held, that one-sixth having been taxed off the bill, the solicitors are not eutitlec I to the costs of the taxation. Elwes and Turner, In re, 58 L. T. 580— Kay, J. Eule not applying to Bankruptcy.] — There is no practice in bankruptcy by which a creditor reducing the bill of the trustee's solicitor by more than one-sixth is entitled to the costs of the taxation, and the Solicitors Act (6 & 7 Vict, c. 73), ss. 37 and 39, does not apply. Marsh, Mv parte. Mars!),, In re, 15 Q. B. D. 340 ; 54 L. J., Q. B. 557 ; 53 L. T. 418 ; 34 W. E. 630 ; 2 M. B. E. 232— G. A. vi. Reviewing Taxation. Objections taken before Taxing-master.] — To enable the court to entertain a summons to review a taxing-master's certificate, where the ground of objection is to the whole of the find- ing generally, it is not necessary that the objec- tions raised by the summons to his finding should have been carried in before the signing of the certificate : Ord. LXV. r. 27, sub-rr. 39 and 41, being applicable only where particular items are objected to. Sparrow v. ITill (7 Q. B. D. 362 ; 8 Q. B. D. 479) followed. Castle, In rr, 36 Ch. D. 194 ; 56 L. J., Ch. 753 ; 57 L. T. 76 ; 35 W. E. 621— Kay, J. Where under an order for taxation of a solici- tor's bill of costs and cash account, the taxing- master found that, in consequence of all ac- counts between the parties having been settled, there was nothing to tax, and certified accord- ingly, but no objections to the finding were carried in before the certificate was signed : — Held, that the court had jurisdiction to enter- tain a summons to review the certificate. lb, Ord. LXV. r. 27, sub-r. 42, of the Eules of Court, 1883, precludes appellants to the Court of Appeal from taking at that stage of the pro- ceedings any objection to the taxation or adduc- 3 L 1763 SOLICITOR— Cosfs. 1764 ing any e^^idenoe other than that which had been carried in and brought before the taxing officer. Hester v. Hester, 34 Ch. D. 607; 56 L. J., Ch. 247 ; 55 L. T. 862 ; 35 W. R. 233 ; 51 J. P. 438— C. A. In Bankrnptcy.]— iSce Bankeuptct, XVIII. 5. Party to take out Summons.] — Where solicitors to trustees claimed to be entitled to certain charges that were disallowed by the taxing- master, the trustees took out a summons to review the taxation : — Held, that the matter had been wrongly brought before the court, as the summons ought to have been taken out by the solicitors, and not the trustees, whose duty it was to protect the estate against increased charges, and the costs of the application must be paid by the trustees personally. Wood v. Calvert, 55 L. T. 53 ; 34 W. E. 732 -Kay, J. Notice to consider Objections — Length of.] — Upon a party objecting to the allowance of certain costs, his solicitors received at 4.30 p.m. from the taxing-master a notice that at 1 p.m. the following day, he would proceed to consider the objections. On a summons to review taxa- tion on the ground that by analogy to r. 16 of Ord. LXV. of the Rules of Court, 1883, the taxing-master ought to have given a clear day's notice of his intention to proceed, notice of the 4th of December, 1885, was sufficient. Hill, In re, 33 Ch. D. 266 ; 55 L. T. 104— C. A. 2. WHAT SUMS ALLOWED. a. Solicitors' Kemuneration Act. i. Election as to Scale. Time for — "Before undertaking any Busi- ness."] — The solicitors of the assigns of a lease of copyhold land wrote to P., the copyholder, asking for renewed leases to their clients under a covenant in the original lease. On the 25th of July P.'s solicitors wrote to the solicitors of the applicants stating that P. had called on them with the letter, and that the matter therein referred to should have their attention, and asking for evidence of the title of the applicants. The evidence required was furnished. Some delay took place in consequence of the necessity of P. being admitted, and obtaining a licence to demise. On the 16th of October, P.'s solicitors were informed by the steward of the manor that P. could be admitted, and that licence to demise would be given. On the 19th of October, P.'s solicitors gave him written notice of their elec- tion to be remunerated according to the old system as modified by Schedule II. to the rules under the Solicitors' Remuneration Act. In the books of the solicitors was an entry under that date " instructions for drawing new leases," but there was no evidence as to the circum- stances under which it was made. On the 21st of October P.'s solicitors sent to the applicant draft leases. The leases were granted, and the lessees, who were bound to pay the costs of the lessor's solicitors, insisted that the remuneration must be according to the scale in Schedule I. : — , Held, that the election on the 19th of October was too late, for that the business had been, undertaken on the 25th of July, and that the taxation must be according to the saaie.. Allen, In re, 34 Ch. D. 433 ; 56 L. J., Ch. 487 ; 56 L.T.6; 35 W. R. 218-C. A. The notice of election under rule 6 ot the General Order to the Solicitors' Remuneration Act, 1881, must be given by the solicitor before he undertakes any business at all in the particular matter for his client. After having done any work in the matter for which he could charge his client if the scale under the order did not apply, it is too late for him to elect. Allen, In re fsupra) followed. Hester v. Hester, 34 Ch. D. 607 ; 56 L. J.. Ch. 247 ; 55 L. T. 862 ; 35 W. E. 233 ; 51 J. P. 438— C. A. Affirming 55 L. T. 669 —Kay, J. A solicitor who acted for a mortgagee in re- lation to the mortgaged property received from the solicitors of the persons entitled to the equity of redemption a request that the mortgagee would sell under his power of sale, and in pursu- ance of this he, without any express authority from his client, did work in relation to the con- tract for sale for which if authorised he would, apart from the rules, under the Solicitors' Re- muneration Act, have been entitled to be paid, and which would be covered by the scale fee. The sale was completed ; — Held, that a notice of election to be remunerated according to the old system, which was given by the solicitor after work of the above description had been done, was too late, although given before the contract was signed, for that as the client had ratified his proceedings he stood in the same position as if he had received previous authority, and must be treated as having undertaken the business as soon as he did any work of the above descrip- tion. Ih. Where money is paid into court under statutes incorporating s. 80 of the Lands Clauses Con- solidation Act, 1845, the solicitor for the vendor may entitle himself to detailed charges, provided that he signifies his election " before undertaking the business." Bridewell Hospital and Metro- politan Bom'd of Worlts, In re, 57 L. T. 155-^ Chitty, J. The notice of election under rule 6 of the general order under the SoHcitors' Remuneration Act, 1881, as to remuneration for conveyancing business arising in an action, must be given by the solicitor before he undertakes such convey- ancing business. After having done any work in the matter which would properly be covered by the scale charge, e.g., discussed with the client the mode of sale and questions relating to the title, it is too late for Mm to elect. Allen, In re (34 Ch. D. 433), and Hester v. Hester (34 Ch. D. 607) followed. Metcalfe, In re, Metcalfe v. Blencoioe, 57 L. J., Ch. 82 ; 57 L. T. 925 ; 36 W. R. 137— Stirling, J. Sending in a bill of costs in the old form cannot be treated as an election by the solicitors to charge according to Schedule II. of the Order. Fleming v. Hardeastle, 52 L. T. 851 ; 33 W. E. 776— Pearson, J. Notice of Election — To whom given. ] — Semble, where a solicitor is acting for several trustees, notice of election must be given to them all. Hester v. Hexter, supra. Where notice of election under the rule has been properly given by a solicitor to his client, a first mortgagee, it is binding on a subsequent incumbrancer and also on the mortgagor. Hester V. Hester — Per Kay, J., supra. , 1765 SOLICITOE— Cosfe. 1766 "Clients."] — Where, under a lease con- taining a power of renewal, the assigns are liable "to pay the costs of a new lease, the only person to whom any notice of election under r. 6 need 'be given by the lessor's solicitor is the lessor himself ; the assigns not being " clients " of the solicitor within s. 1, sub-s. 3, of the Solicitors' Remuneration Act, 1881. so as to make any notice to them necessary. Allen, In re, 34 Ch. D. 423 • 56 L. J., Ch. 6 ; 55 L. T. 630 ; 35 W. B. 100 ; 51 J. P. 325— Per Kay, J. See S. C. in C. A., supra. Work done before Eules.] — ^Whether a solicitor ■might on the rules coming into operation have -effectually declared such election, quaere. Field, In re, iofra. ii. Ill what Cases Applicaile. a. Qeiurally, Conveyancing Business in Action — "Other 3usinesB."] — Solicitors who transact convey- ;anciag business in an action will, under the Soli- citors' Remuneration Act, 1881 (44 & 45 Vict. •c. 44), and the General Order of August, 1882, be allowed taxed costs and charges for such business according to the scales set forth in the ■schedules to the General Order. The proper ■construction of the language of s. 2 of the Soli- citors' Remuneration Act, 1881, is that it refers to conveyancing matters which take place in an action as well as to those out of court, and that the exception is only from " other business " not being conveyancing business, and accordingly where the taxing-master had disallowed certain ijharges made for conveyancing business in an action, and under the scales of charges contained in the schedules to the General Order of August, 1882, he was directed to review his taxation. Stanford v. Boherts, 26 Oh. D. 155 ; 53 L. J., Ch. 338 ; 50 L. T. 147 ; 32 W. R. 404 ; 48 J. P. 692 —Kay, J. The words of s. 2, " not being business in any action or transaction in any court or in the chambers of any judge or master," apply only to the " other business " mentioned immediately before, i.e., to business not being conveyancing business, and do not exclude from the scale con- veyancing business done under the direction of the court. Merchant Taylors' Company, In re, 30 Ch. D. 28 ; 54 L. J., Ch. 867 ; 52 L. T. 775 ; 33 W. B. 693— C. A. Whole of Business must he Done.] — ^A tenant having an option of purchase of the fee at a given price on the terms of his paying all the vendor's costs, gave notice of the exercise of the option, and stated that he should not require an abstract of title, and sent in his draft convey- ances for perusal. The vendor's solicitors sent in their bill of costs, in which they charged 30«. per cent, on the purchase-money of each lot, considering that this was the proper charge under the Solicitors' Remuneration Act, 1881, which provides that amount of remuneration to a ven- dor's solicitor "for deducing title to freehold, copyhold or leasehold property, and perusing and completing conveyance (including prepara- tion of contract or conditions of sale if any) " : — Held, that the case was governed by the new rnles, but that the bill was framed on an erroneous footing, for that the ad valorem remu- neration authorised by Schedule I. was charge- able only where the whole of the business in respect of which it was imposed, viz.; the de- ducing title and perusing and completing con- veyance was done ; that here, as there was no deducing of title, but only perusal and comple- tion of the conveyance, Schedule I. did not apply, but that under the General Order, r. 2 (c), the solicitor's remuneration was to be regulated by the old system as modified by Schedule II. Lacey 4' Sons, In re, 25 Ch. D. 301 ; 53 L. J., Ch. 287 ; 49 L. T. 755 ; 32 W. R. 233— C. A. Under a provision contained in a will the testator's sons took the real estate at a valuation, and took over the assets and liabilities of his business, the sons giving a mortgage to the trustees to secure the purchase-money. The same solicitors acted for all parties in preparing the necessary deeds, and charged full vendors' and purchasers' costs, and also mortgagors' and mortgagees' costs under the scale : — Held, that they were only entitled to remuneration under schedule 2, for, as they had not " investigated and deduced title," the scale charge did not apply. Keeping and Gloag, In re, 58 L. T. 679 — Stirling, J. In July, 1881, W. instructed his solicitors to prepare a building agreement with form of lease to be granted on completion set out in the schedule. In June, 1883, the premises having been completed, W. gave further instructions for a lease, which, as prepared, was, except as to parties, a verbatim copy of that contained in the schedule. In November, 1883, the solicitors delivered their bill of costs, in which under date July, 1881, were various items amounting to 111. in relation to preparing the agreement ; and under date June, 1883, "to costs of preparing, engrossing, executing, and completing lease and counter-part, as per Schedule I. of Solicitors' Remuneration Act, 59Z. 10s." On taxation this item was objected to, on the ground that the act did not apply, as the substantial part of the work done was previous to the 1st of January, 1883, and bad been already charged for in the costs of preparing the agreement. The taxing-master disallowed the objection, but deducted 20Z. from the 59Z. 10s., and directed a detailed bill of costs in relation to the preparation of the lease to be brought in. This bill was delivered, but was not taxed. On summons to review taxation : — Held, that the taxing-master ought to have taxed the detailed bill for the actual preparation of the lease, and not have allowed the ad valorem scale even to the extent he did ; that the ad valorem scale applied only where the solicitor had sub- stantially done the work specified in Schedule I. ; that as the scale charges did not apply, the taxing-master ought to have taxed their charges in accordance with r.2, sub-s. (c), and Schedule II. Hlckley, In re, 54 L. J., Ch. 608 ; 52 L. T. 89 ; 33 W. R. 320— Chitty, J. See also Wilson, In re, and Wood v. Calvert, post, col. 1771. Part of Work done before Act.] — Negotiations for a lease were carried on through the lessor's solicitor for two years before the rules under the Solicitors' Remuneration Act, 1881, came into operation. After they came into operation terms were come to, and a lease executed. The solicitor in his bill charged for the negotiations, and also charged the amount fixed by Schedule I. Part II. to the rules, as remuneration " for pre- paring, settling, and completing lease and counter- 3 L 2 1767 SOLICITOR— Cosfe. 1768 part." The taxing-master disallowed all the items for negotiations. The solicitor appealed : — Held, that though the business had been com- menced before the rules came into operation, the taxation must be conducted according to the rules, the solicitor not having declared his elec- tion to the contrary. Field, In re, 29 Ch. D. 608 ; 54 L. J., Ch. 661 ; 52 L. T. 480 ; 33 W. E. 553 ; 49 J. P. 613— C. A. And see preceding case. In June, 1882, D. contracted to sell a piece of land for 375Z. upon the terms of the purchaser paying to the vendor " all reasonable and proper costs " of making and verifying his title and executing the conveyance. In January, 1883, the general order under the" Solicitors' Eemuner- ation Act, 1881, came into operation. That Order provides that the costs of the vendor's solicitor, with respect to such a sale, shall be according to an ad valorem scale of 30«. per cent, (see Schedule I., part 1). In April, 1883, D. (who had previously employed a country solicitor) transferred the business to a London solicitor. In March, 1884, the London solicitor sent in his bill of costs to the purchaser's solicitor made out on the old system. The purchaser's solicitor objected that the bill ought to be made out according to the scale prescribed by the General Order. On a summons by the purchaser for a declaration to this effect : — Held, that the costs payable by the purchaser were regulated by that Order. Denne and Secretary of State for War, In re, or Secretary of State for War and Denne, In re, 54 L. J., Ch. 45 ; 51 L. T. 657 ; 33 W. R. 120 — Pearson, J. See also Fleming v. Hard- castle, infra. i8. Sale of Laud. Out of the Jurisdiction.] — The general order made in pursuance of the Solicitors' Remuner- ation Act, 1881, does not apply to a sale of land situate outside the jurisdiction. Therefore, on such a sale, the costs of the vendor's solicitor are not chargeable according to the scale in Schedule I., part l,but are regulated by the old system as altered by Schedule II. Greville's Settlement, In re, 40 Ch. D. 441 ; 58 L. J., Ch. 256 ; 60 L. T. 43 ; 37 W. E. 150— Kay, J. " Investigating Title."] — The Corporation of London resolved to purchase the old bankruptcy court, which under s. 68 of the Bankruptcy Act, 1861, was vested in the Public Works Commis- sioners, the purchase-money, 93,500Z., being pay- able out of funds in court under various acts, including the Lands Clauses Act, and represent- ing lands of the corporation taken by certain public bodies. On applying to the commis- sioners the corporation were informed that the property was vested in the commissioners under the above section, and that they " did not agree to furnish any evidence of title," but would apply to the Lord Chancellor, under the section, for his authority to sell ; and they subsequently wrote that the Lord Chancellor had authorised the sale by his secretary. The city solicitor, however, having regard to the terms of the section, required a written authority signed by the Lord Chancellor himself, which was duly obtained. The solicitor, having thus satisfied himself as to the commissioners' title, obtained, on summons in chambers, an order sanctioning the purchase, the chief clerk, upon the produc- tion of the Lord Chancellor's authority and at the request of the solicitor, dispensing with the usual reference as to title. The purchase having been completed, the corporation carried in their soUcitor's bill for taxation, containing a charge for 278Z. 15»., according to the scale in Schedule I., part 1, of the general order under the Solici- tors' Remuneration Act, 1881, for "investigating title and preparing and completing conveyance." The taxing-master disallowed the charge on the ground that there had been no investigation of title, and that therefore the scale charge did not apply. On a summons by the corporation to review the taxation : — Held, that there had been an " investigation of title " within the terms of the general order, and that therefore the scale charge applied. London (^Mayor'), Ex parte, 34 Ch. D. 452 ; 56 L. J., Ch. 308 ; 56 L. T. 13 ; 35 W. R. 210— Kay, J. A lessee, with an option of purchasing the freehold of the land leased, gave notice of his desire to exercise the option. E. said he thought one of the lessors had money to lend, and com- municated the lessee's desire to him. The lessee and lessor met and arranged between them that 800Z. should be advanced upon mortgage of the property about to be purchased. E. acted as solicitor in reference to the mortgage and pur- chase. He did not ask for or inspect any abstract of title on behalf of the mortgagee, as the only title was that of the lessors, a copy of which had been given to the lessee. The purchase and mortgage were completed, and E. delivered a bill of costs, by which he charged the fees allowed by Sched. I., part ], of the general order under the Solicitors' Remuneration Act, 1881, for investigating title and preparing mort- gage. The bill was paid, and a summons was. taken out after payment for taxation : — Held, that E. was not entitled to the scale fee for investigating title, as there had been no investi- gation, and that the overcharge in these respects was such as to constitute " special circumstances" justifying taxation after payment under 6 & T Vict. 0. 73, s. 41 ; but it appearing that there had been a bargain between the client and E. previous to payment not to dispute the bill of costs, the summons was dismissed. Mey, In re, •il Ch. D. 40 ; 56 L. J., Ch. 905 ; 57 L.' T. 253 ; 36 W. E. 96— North, J. Preparation of Contract — Negotiation — Completion.] — Under the usual order for taxation of costs, charges, and expenses in an administra- tion action, the solicitor's sent in a bill of costs for conveyancing work done for the estate made out in the old way. It related to purchases by the trustees, the negotiations and most of the work for which was done before, but which was completed after, the act came into operation. The taxing-master allowed only costs according to the first schedule of the general order. One of the purchases was a purchase back by the trustees of surplus lauds taken from them by a railway company, and the title was therefore taken without investigation, except as to a very small piece which had belonged to another owner ; the solicitors, though acting for the purchasers, had prepared the contract for sale : — Held, that the scale applied, although part of the work was done before the act ; that the title had substantially been investigated as far as was necessary, and therefore Lacey, In re (25 Ch. D. 301) did not apply, but that they were entitled 1769 SOLICITOE— Cosfs. 1770 to charge for preparation of the coutract iu addition to the scale charge, because the scale assumes the contract to be prepared by the vendor's solicitor, and they were entitled to 1 per cent, for negotiating the purchase as well as to the IJ per cent, for completion. Fleming V. Hardcastle, B2 L. T. 851 ; 33 W. R. 776— Peai-son, J. Part of Money on Mortgage.] — When part of the purchase-money is allowed to remain on mortgage of the property sold, the solicitor of the vendor mortgagee cannot charge the scale fee under Schedule I., part 1, of the general order under the Solicitors' Remuneration Act, 1881, for investigating the mortgagor's title. Slascodine and Carlyle, In i-e, 52 L. T. 781 — C. A. Deducing Title — Perusing and Completing Conveyance.] — See Harris, In re, post, col. 1772. Searches.] — To entitle a solicitor to the percentage charges under Schedule I., parts 1 and 2, of the general orders under the Solicitors' Remuneration Act, 1881, he must have deduced title to the premises, and of such deduction of title, famishing searches is an essential part. £uc1iley. In re, Ferguson, Ex parte, 21 L. R., Ir. 392— M. R. Perusing Abstracts.]— Upon the construction of Schedule II. of the General Order (containing scales of charges) made iu pursuance of the Solicitors' Remuneration Act, 1881, abstracts of title are not included in the words " deeds, wills, and other documents," the charge for perusing ■which is therein fixed at Is. per folio ; but the old scale of 6s. Sd. for perusal of every three brief sheets of eight folios each remains un- altered. Parker, In re, 29 Ch. D. 199 ; 54 L. J., Ch. 959 ; 52 L. T. 686 ; 33 W. R. 541— Chitty, J. Perusing Conveyance — Partition Action.] — In a partition action an order was made for the sale of the estate and payment of the costs of all parties out of the proceeds. The plaintiff, who was the owner of one-fourth of the estate, had the conduct of the sale, and his solicitor was paid his costs in accordance with r. 2, sub-s. (a), of the general order under the Solicitors' -Remunera- tion Act, 1881 : — Held, that the solicitors of the defendants, who were the owners of the other three-fourths of the estate, were entitled to be paid the costs of perusing the conveyance, and obtaining its execution by their clients, under r. 2, sub-s. (c). Humphreys v. Jones, 31 Ch. D. 30 ; 55 L. J., Ch. 1 ; 53 L. T. 482 ; 34 W. R. 1— C.A. Attempted Ineffectual Sale — Change of Soli- citors.] — Schedule I., part 1, r. 2, of the general order to the Solicitors' Remuneration Act, 1881, applies only to cases where the attempted in- efiectual sale and the subsequent effectual sale therein mentioned are conducted by the same ■solicitors. If there is a change of solicitors after an attempted ineffectual sale, the taxation of the costs of such sale must be made under general order, r. 2 (c). Dean, In re. Ward v. Holmes, 32 Ch. D. 209 ; 55 L. J., Ch. 420 ; 54 L. T. 266— Kay, J. Subject to Incumbrances — Scale Charge, how ascertained.] — The property of a company in liquidation was sold by the solicitors of the ofBcial liquidator for 24,0002. (subject to amort- gage for 900^.), and after the satisfaction of the claims of former successive owners a sum of 1,7502. remained for the official liquidator. The sale was confirmed by an order made in the liquidation, and the parties to the conveyance were the company, the official liquidator, the original owners, and certain intermediate pur- chasers who had claims for unpaid purchase- money. The solicitors on taxation included in their bill of costs scale charges as upon a sale for 24,9002. as follows : — Negotiating, 1022. os. ; deducing title, and completing, including con- tract, 1072. 5s. The taxing-master disallowed the negotiating fee, and only allowed the scale charge upon the 1 ,7502. On summons to review taxation : — Held, that the court could look not only at the contract, but at the substance of the transaction, and that, having regard to the whole of the matters with reference to the provisional contract coupled with the order, the liquidator's name was only used for the purpose of con- venience, and that the taxing-master's decision was right. Grey's Breicei-g Company, In re, 56 L. T. 298— Chitty, J. Upon the sale by a trustee in bankruptcy of property belonging to the bankrupt subject to incumbrances, the solicitor of the trustee is en- titled to be paid a percentage on the total amount of the purchase-money, and not simply on the value of the equity of redemption. Karris, Eao parte, Oallard, In re, 21 Q. B. D. 38 ; 57 L. J., Q. B. 528 ; 59 L. T. 147 ; 36 W. R. 592 ; 5 M. B. R. 123— Cave, J. Under Lands Clauses Act.] — Money arising from the sale of land belonging to a cor- poration, and taken by a railway company under their statutory powers, was reinvested in land under the direction of the court. The solicitor of the corporation charged the ad valo- rem scale fee prescribed by the rules under the Solicitors' Remuneration Act, 1881, Schedule I., parti, "for investigating title and preparing and completing conveyance :" — Held, that the ex- ception in Schedule I., part l,r. 11, which provides that the scale shall not apply in cases of sales under the Lauds Clauses Act, or any other private or public act under which the vendor's charges are paid by the purchaser, was not applicable to the case. Merchant Taylors' Company, In re, 30 Ch. D. 28 ; 54 L. J., Ch. 867 ; 52 L. T. 775 j 33 W. R. 693— C. A. Held, also, that as the purchaser's solicitor had had to do all the things which he would have had to do in a purchase not under the direction of the court, the case was not taken out of the scale by the fact that, in a purchase under the direction of the court, he did not incur as much responsibility as in a private purchase, and therefore, that the scale fee was properly chargeable. lb. Perusal of Deeds.] — Under an order to tax the costs awarded to the owner of lands oompulsorily taken by a company, his solicitor is not entitled to \s. per folio for perusing deeds referred to in the abstract of title furnished. The general order made in pursuance of the Solicitors' Remuneration Act, 1881, Schedule II., does not apply to such taxation. Bann Naviga- tion Act, In re, Olpherts, Fx parte, 17 L. R., Ir, 168— M. R. 1771 SOLICITOE— Cosfs. 1772 Election as to Scale.] — See Sridewell Hospital and Metropolitan Board of Works, In re, ante, col. 1764. Sale hy Auction — Some Work done by Sur- veyor. ]— A trust estate in Yorkshire was ordered to be sold by the court, and the costs to be taxed. The appointment of an auctioneer was sanctioned in chambers, and also the appoint- ment of a certain firm of surveyors. The pro- perty was sold. The taxing-'master allowed a fee to the auctioneer for putting the property up for sale and knocking it down, which, accord- ing to the custom of the country, was the manner in which an auctioneer was paid there. He also allowed charges to the surveyors for dividing the property into lots, valuing it, preparing plans, and settling the reserves. The solicitors to the trustees claimed to be entitled to the scale charges allowed by the schedule to the Solicitors' Eemuneratiou Act, 1881, for conducting the sale, and also to be allowed the fees which they had paid to the surveyors ; the auctioneer's fee they proposed to pay themselves. The taxing- master disallowed the scale charges. The trus- tees took out a summons to review the taxation : —Held, that the solicitors were not entitled to the scale charges, inasmuch as some of the work which they ought to have done had been done by the surveyora, and their fees paid by the clients. Wood v. Cahert, 55 L. T. 53 ; 34 W. E. 732— Kay, J. Property of a lunatic iu Lancashire was put up for sale by auction under an order in lunacy, but was not sold. The solicitor charged 16Z. lis. &d. remuneration according to the scale in the order under the Solicitors' Eemune- ratiou Act, 1881, on 8,300Z., the amount of the reserved prices. He also paid the auctioneer 51. 5s., which was allowed against 'the estate, and the surveyor's bill of iOl. 3s. was allowed at Sll. 10s. against the estate, but the taxing- master disallowed the 161. 12s. 6d., and only allowed 21. 2s. for instructing the auctioneer and surveyor, and 31. 3s. for particulars, &c. His reasons were, first, that the solicitor had not in fact conducted the sale, the auctioneer and sur- veyor having done most of the work and been paid by the client ; and secondly, that the scale did not apply, for that a commission had been paid to the auctioneer by the client within the meaning of r. 11 to part 1 of Schedule I. to the general order : — Held, that as the bill of the surveyor contained charges for various things which it was the duty of the person conducting the sale to do, the solicitor had not done the whole of the work for which the ad valorem re- nuneration was provided, and the scale did not apply. Wilson, In re, 29 Ch. D. 790 ; 55 L. J., Ch. 627 ; 53 L. T. 406— C. A. Conducting Sale — No Commission paid by Client to Auctioneer.] — Semble, also, that the case was taken out of r. 4 by the specific provision of i. 11 to part 1 of Schedule I. to the order, which provides that the scale for con- ducting a sale by auction shall apply only in cases where no commission is paid by the client to an auctioneer. li. An agreement for sale of certain leasehold property was entered into whereby the pur- chasers, who were a public body, agreed to pay the vendor's solicitors' preliminary costs, and also the costs of title and conveyance, and the fees of the vendor's surveyor. A surveyor was employed, who, according to the vendor's soli- citors' statement, merely valued the property, though it was alleged by the purchasers that he- also negotiated the price. The purchasers, who- had become owners of the reversion, did not re- quire any abstract or copy of the vendor's lease to be furnished to them on being informed by the vendor's solicitors that the title consisted of the lease only. The purchase was completed, and the purchasers paid the fee of the vendor's, surveyor. The vendor's solicitors sent in a bill of costs to the purchasers consisting of two- items only, the first being the charge allowed by the scale in Sched. I., part 1, of the General. Order to the Solicitors' Remuneration Act, 1881, for negotiating a sale by private contract, and the second being the charge allowed by the- same schedule for deducing title to leasehold property and perusing and completing convey- ance. Upon taxation the taxing-master held that the vendor's solicitors were not entitled to costs calculated upon the scale in Sched. I., part- 1, but to costs calculated under Sched. II. only r — Held, upon summons to review taxation, that the solicitors were not entitled to the scale- charge for negotiating, a sale by private con- tract, as the surveyor's fee was a commission to " an auctioneer or estate or other agent " within Sched. I., part 1, i-. 11, of the General Order, and that they were not entitled to the scale charge for deducing title and perusing and completing-, conveyance, as no title was deduced, HarriSf In re, 56 L. T. 477— North, J, Property was put up for sale 'oy public auction,, and sold in two lots. The auctioneer's commis- sion was paid by the vendor. The solicitor em- ployed by the vendor in connexion with the sale, charged the scale fee provided by part 1 of Sched. I. to the General Order of August, 1882,. under the Solicitors' Eemuneratipn Act, 1881, for " deducing title," &c. ; and he also made- various charges for work done by him previous- to the sale, for which he claimed to be entitled under clause 2 (c) of the order. The taxing- master allowed the scale fee, but disallowed the other items, considering himself bound by Mmanuel, In re (33 Ch. D. 40) :— Held, that. the solicitor was entitled under clause 2 (o) (in addition to the scale fee for deducing title), to. charge in respect of work properly done by him in connexion with the sale for which the auc- tioneer had not been paid. Faulltner, In re, 36- Gh. D. 566 ; 56 L. J., Ch. 1011 ; 57 L. T, 342 ;. 36 W. R. 59— North, J. On a sale by auction of property in Yorkshire, under an order made in an administration action,., the chief clerk, previously to sale, settled a sum for auctioneer's fees. In accordance with the mode of business in Yorkshire the auctioneer merely ofEered the property for sale, and the solicitor having the conduct of the sale paid all other expenses of the auction, including those of preparing and distributing the particulars and conditions of sale, advertisements, printer's bills, and the costs of lithographed plans : — Held, that under the Solicitors' Remuneration Act, 1881, General Order, Sched. I., part 1, r.,ll,the solicitor- was not entitled to scale fees for conducting the sale by auction. SyJies, In re, Syltes v. Syltes, 56 L. J., Ch. 238 ; 56 L. T. 425 ; 36 W. R,2'34— Chitty, J. A solicitor employed in a sale of property by auction, where the auctioneer's commissioil was. 1773 SOLICITOR^C7osfs. 1774 paid by the client, delivered a bill, in which he charged the scale fee for conducting the sale, and deducing the title, and mentioned items of solicitor's work not included in the scale fee for deducing the title. The taxing-master dis- allowed the fee for conducting the sale because of the auctioneer's chai'ges being paid by the client, and did not allow any fee for items men- tioned in the bill of solicitor's work not included in the scale fee for deducing the title, on the ground that the bill was made up on a wrong footing, and : could not be altered by adding charges : — Held, that the taxing-master was right in disallowing the scale fee for conducting the sale, but that he ought to have allowed the solicitor a quantum meruit for solicitor's work done by him, and mentioned in his bill, and which was not covered by the scale fee for deducing title. Peace and Mlis, In re. 57 L. T. 753 ; 36 W. E. 61— North, J. Solicitors were employed in a sale of property by auction, the client paid the auctioneer a lump sum for his services. The solicitors claimed re- muneration for work done by them in relation to the conducting of the sale. Eule 11 of Sched. I., part 1, provides that " the scale for conducting a sale by auction shall apply only to cases where no commission is paid by the client to the auc- tioneer" : — Held, that rule 11 does not deprive the solicitor of all remuneration for work done in respect of the conduct of the sale, but that under the General Order, s. 2, sub-s. (c), he is entitled to a quantum meruit for such work, the remuneration to be regulated according to the old system as altered by Schedule II. Parlter v. Blenkhorn, Newbould v. Bailward, 14 App. Cas. 1 ; 58 L. J., Q. B. 209 ; 59 L. T. 906 ; 37 W. K. 401 — H. L. (E.). Eeversing Parlier, In re, 59 L. T. 491—0. A., and Newbmld, In re, 20 Q. B. D. 204 ; 57 L. J., Q. B. 41 ; 58 L. T. 334 ; 36 W. E. 161—0. A. 7. Leases. Prior Agreement for — Scale Fee.] — The scale fee prescribed by part 2 of Sched.- I. to the General Order of August, 1882, under the Soli- citors' Eemuneration Act, 1881, to be paid to a lessor's solicitor "for preparing, settling, and completing lease and counterpart," includes the solicitor's remuneration for the preparation of a prior agreement for the lease, and the solicitor cannot charge for the preparation of the agree- ment in addition to the scale fee. Mma/imel, In re, 33 Oh. t». 40 ; 55 L. J., Oh. 710 ; 55 L. T. 79 ; 34 W. E. 613 ; 51 J. P. 22-0. A. An agreement for a lease provided that the lessor should at his own expense do certain repairs to the property and deliver possession to the lessee as soon as they were done, which was to be not later than a certain day, time to be of the essence of the contract, and that, on the les- sor complying with these conditions, the lessor should grant, and the lessee accept, a lease in the form thereto annexed : — Held, that these stipulations did not relate to collateral matters, so' as to make the agreement something more than a step towards the granting of the lease, but related only to the terms on which the lease was to be granted, and that the preparation of the agreement was " business connected with " the lease within the meaning of r. 2 of the general order, and could not be separately charged for. It. ■' Agreements for leases " in Sched. I., part 2, means agreements for leases intended to be relied on as regulating the tenancy without any formal lease, and the scale fee is payable in respect of them, lb. Charge for Negotiations.] — Having regard to r. 2, the amount fixed by Sched. I., part 2, in- cludes the charges for, negotiations prior to granting a lease. Field, In re, 29 Oh. D. 608 ; 54 L. J., Ch. 661 ; 52 L. T. 480 ; 33 W. E. 553 ; 49 J. P. 613—0. A. Scale — Bent — Shares — Money Payment or Premium,] — ^A firm of solicitors were employed by a lessor to prepare for him a lease of certain property for twenty-one years to a company, the consideration for the lease being a rent of 80Z., and the issue of 400 shares of the nominal value of 10^. None of the company's shares had been sold, so that no market value had been placed upon them ; and 200 of the 400 shares had not been issued. The solicitors chajcged the scale fee on the rent of 801., and also the scale fee for deducing title, perusing and com- pleting the deed as upon a premium of 4,000Z., the amount of the nominal value of the 400 shares : — Held, that they were not entitled to make the latter charge, as the value of the shares could not be estimated, and r. 5, part 2, Sched. I., of the Eemuneration Order, 1882, did not apply to such a case. Hasties and Craw- furd, In re, 36 W. E. 572— North, J. S. Mortgages, Negotiating Fee.] — ^A solicitor mentioned to a borrower the name of a client of his as likely to lend. A mortgage was arranged vrithout further action on the part of the solicitor, who then acted for both parties in the matter of the mortgage : — Held, that the solicitor was not entitled to a negotiating fee. miey, In re, 37 Oh. D. 40 ; 56 L. J., Ch. 905 ; 57 L. T. 253 ; 36 W. E. 96— North, J. ' ' Perusing ' ' Title-deeds. ] — ^A solicitor making advances to a client upon the security of real property and perusing for that purpose the title- deeds of such property, is not entitled to charge at the rate of Is. per folio " for perusing" under the 2nd schedule of the General Order of August, 1882, made in pursuance of the Solicitors' Ee- muneration Act, 1881 (44 & 45 Tict. c. 44). Robertson, In re, 19 Q. B. D. 1 ; 56 L. T. 859 ; 35 W. E. 833— D. Sale of Leaseholds — Discretion of Taxing- Master.] — In an administration action, to which mortgagees of leaseholds were not parties, the plaintiffs obtained an order to sell the leaseholds, and that the money should be paid into court. The order was made without tlie knowledge of the mortgagees. The plaintiffs wrote to the mortgagees sending draft particulars and con- ditions of sale as settled by the conveyancing counsel to the court " for your perusal." The mortgagees undertook to concur in the sale on condition that their mortgage debt and costs and expenses were provided for out of the pro- ceeds of sale in court, and they returned the conditions approved. The taxing-master dis- allowed the fees charged at the rate of Is. a 1775 SOLICITOR— Costs. 1776 folio for perusing the conditions of sale, but allowed a fee of one guinea for reading them. One of the grounds of disallowance was that conditions of sale were not such documents as were intended by the word " documents " in Schedule II. of the General Order made in pur- suance of the Solicitors' Eemuneration Act, 1881. On summons to vary the taxing-master's certifi- cate : — Held, that (while not deciding that con- ditions of sale did not come within the word " documents ") this was an extraordinary case where the taxing-master had a discretion. Riies, III re, Bees v. Jiees, 58 L. T. 68— Kay, J. e. Trustee and Cestui gue Trust. Act not Applying.] — In taxation between solicitor and client, cases for counsel to advise trustees whether they should require a release from their cestui que trusts on their discharge, statements for the information of the client as to the investment of the trust funds, and the prudence of changing it, or directions to the trustees, signed by the client, consenting to the change of investment, and directing a new in- vestment, are not included in Sched. II. of the General Order to the Solicitors' Remuneration Act, 1881, but are taxable under the scale of fees prior to that act. O'Hagan, Mx parte, 19 L. R., Ir. 99— M. R. b. In Other Cases- Charge on Eecovered or Preserved Property.] — H. and H., solicitors acting for an adminis- trator, were authorised by him to retain, in respect of their costs, certain moneys forming part of the estate of the deceased. An order to tax the bill of costs of H. and H. was obtained by J., one of the next of kin of the deceased, acting by R., her solicitor. The taxation showed that H. and H. had been overpaid to the extent of 3.54^. H. and H. then acted for J., and, on her behalf, disputed the validity of E.'s retainer by .1. It was, however, decided by Kay, J., that the retainer was valid. An order was then ob- tained by R. giving him a charge on the S5il., in respect of his costs properly incurred in the recovery of that sum ; and such costs were thereby directed to be taxed. The Court of Appeal affirmed the order, upholding R.'s re- tainer. In taxing the costs of R. under the charging order, the taxing-master allowed him the costs of the opposition to the proceedings to set aside the retainer, and also the costs connected with the appeal. H. and H. having objected to such allowance, they received, at 4.30 p.m. on the 4th December, 1885, from the taxing-master, a. notice that, at 1 p.m. on the following day, he would proceed to consider their objections. H. and H. requested the taxing- master to adjourn to a later day, but he refused to do so, and proceeded in their absence. On a summons being taken out by the administrator, that the taxation should be reviewed on the grounds : (1) That the costs in reference to the dispute as to retainer ought not to have been included in the taxation, inasmuch as they were merely the costs of a private dispute between J. and R. ; (2) that the costs of the appeal ought not to have been included, inasmuch as they were incurred after the date of the charging order : — Held, (1) that the costs of the opposition to the proceedings to set aside the retainer were costs of " recovering " the 354Z., and that such costs were properly included in the taxation ; (2) that the appeal having been brought in con- sequence of the proceedings in the court below, the costs thereof were properly included. Mill, In re, 33 Oh. D. 266 ; 55 L. T. 104— C. A. In County Court — Scale in Actions under £10.] — The Appendix to the County Court Rules, 1886, contains a scale of costs as between solici- tor and client where the amount recovered exceeds 21., and does not exceed lOl., and pro- vides that no other costs are to be allowed where the amount claimed does not exceed lOZ., unless the judge certifies under s. 5 of the County Courts (Costs and Salaries) Act, 1882. The plaintiff having commenced an action in a county court for loX, consulted solicitors with reference to it, who, after taking various steps to investigate the claim, recommended a settlement, which the plaintiff refused to accept. The solicitors then returned the papers to the plaintiff, who pro- ceeded with the action in person : — Held, that upon the taxation of the solicitors' bill for the services rendered by them, it was a question for the master whether the solicitors had, in fact, acted in the conduct of the action, and that if they appeared to have so acted, they could recover no other costs than those specified in the appendix. Emanuel and Convpany, In re (9 Q. B. D. 408) considered. Dod, Longstaffe and Company, In re, Lamond, Ex parte, 21 Q. B. D. 242 ; 57 L. J.. Q. B. 503 ; 59 L. T. 467 — D. Power to disallow Items caused by Negli- gence.] — The taxing-master in taxing a bill of costs between a solicitor and his client has power to disallow the costs of proceedings in an action conducted by the solicitor which were occasioned by the negligence or ignorance of the solicitor. But if the negligence goes to the loss of the whole action, he ought not to disallow them, but to leave the client to bring an action for negligence against the solicitor. Massey and Carey, In re, 26 Ch. D. 459 ; 53 L. J., Ch. 705 ; 51 L. T. 390 ; 32 W. R. 1008— C. A. Inaccurate Particulars — Conditions of Sale. ] — A solicitor inserted an inaccurate statement in the particulars of a sale, which he attempted to cover by a condition. An intending purchaser refused to complete on discovering the in- accuracy, but counsel advised the vendor's solici- tor that the condition in question bound the purchaser, and advised a summons under the Vendor and Purchaser Act, which was accordingly taken out ; the chief clerk and court of first instance a^eed with counsel, but the Court of Appeal reversed their decision, and held that the said condition could not get rid of the positive statements in the particulars, so that the purchaser could not be compelled to com- plete. In the taxation of the vendor's costs as between him and the solicitor, the taxing-master disallowed the solicitor his costs in connexion with the abortive attempt at a sale and with the summons, and the court affirmed his disallow- ance. X, In re, 54 L. T. 634— V.-C. B. Country Solicitor — Journeys to London.] — Upon a summons by a solicitor for an order directing the taxing-master to review his taxa- tion of a bill of costs : — Held, that the journeys 1777 SOLICITOK— Cosfs. 1778 of a country solicitor to town to attend counsel and otherwise to conduct the proceedings in an action ought to be allowed, where the solicitor had authority from his client to make these charges, but that such journeys to town ought not to be allowed simply on the principle that the country solicitor would probably be better acquainted with the subject-matter than his London agent. Foster, In re (8 Ch. D. 598) dissented from. Storcr, In re, 26 Ch. D. 189 ; 53 L. J., Ch. 872 ; 50 L. T. 583 ; 32 W. E. 767— Pearson, J. Solicitor attending Trial where he does not Practise.] — A solicitor attending on a record for trial at assizes In a county where he does not usually practise is entitled upon taxation be- tween solicitor and client, to 21. 2s. for each day necessarily occupied, irrespectively of the number of days the cases may be actually at hearing, or of its being settled without a trial. The allowances Nos. 100 and 101 in the schedule to the Genei-al Rules of 1 854 as between solicitor and client, are not altered by the orders as to costs under the Judicature Act. M'Namara t. Malone, 18 L. R., Ir. 269— Ex. D. Case for CoTmsel's Opinion.] — A fee to counsel for advising as to whether an ejectment will lie, and who are the necessary parties to be made plaintiffs, may in a proper case be allowed, as between solicitor and client. li. Counsel's Fees — Quantum — ^Authority to em- ploy particular Counsel.] — The special allow- ances and scale of fees mentioned in rules of Supreme Court, 1883, Ord. LXV. r. 27, sub-s. 48, are appKcable to all taxations, whether in asn action in the Supreme Court, or under the common order, or under a special order obtained by a client against his solicitor under the juris- diction given by the Solicitors Act, 1843 (6 & 7 Vict. c. 73). But Ord. LXV. r. 27, sub-s. 48, •does not prevent the client from giving the •solicitor authority, which may be expressed or implied, to employ a particular leader, and to give him such special fees by way of refi'esher •or otherwise, though of far larger amount than the maximum fixed by sub-s. 48, as may be necessary to secure his services. And such authority having been shown by the evidence to have been clearly and distinctly given by the clients (a board of directors) to their solicitor : — • Held, that the taxing-master was not pre- cluded from allowing more than the maximum scale fee fixed by sub-s. 48, and that he must exercise his discretion as to the quantum, having regard to the authority given by the clients to their solicitor. Sarruon, In re, 33 Ch. D. 52 ; 55 L. J., Ch 768 ; 55 L. T. 72 ; 34 W. R. 645 ; 50 J. P. 372— C. A. Befresher and Consultation Fees.] — There is no recognised rule that where special fees have been paid to the leader, the fees paid to his juniors must be according to the same rate ; and, accordingly, in the absence of proof that the clients had authorised payment of special refresher fees to the junior counsel pro- portionate to those paid to the leader, the dis- allowance by the taxing-master of special refresher fees to the juniori counsel was upheld. Although the case was one of very great magni- tude and complication, and occupied twenty- nine days, the court declined to interfere with the discretion of the taxing-master in disallowing extra fees paid by the solicitor to his counsel for consultations. lb. Third Counsel— Solicitor not informing Client of unusual Expense.] — The rule laid down in Blyth and Fanshawe, In re (10 Q. B. D. 207), applies to the costs of employing a third counsel on the hearing of an appeal, the expense being an unusual one. Therefore, even if a solicitor has obtained his client's sanction to the employment of a third counsel on an appeal, the costs will not be allowed on taxation be- tween solicitor and client, unless the solicitor has also explained to the client that the costs will probably not be allowed as between party and party, and that, even if he succeeds on his appeal, he may have to pay the costs of the third counsel himself. Broad, In re, 15 Q. B. D. 420 ; 54 L. J., Q. B. 573 ; 52 L. T. 888— C. A. Affirming 33 W. R. 749— D. 0. Wlien Solicitor a Party. Solicitor Suing or Defending in Person.]— Where a solicitor sues or defends an action in person, and obtains judgment ■with costs, he is entitled to recover from his adversary the same costs as would have been allowed if he were not a party to the action, but were acting as solicitor for another person, subject to this, that the costs to be allowed must not include any items which the union of the two characters renders impos- sible or unnecessary ; and where any items are attributable to the fact that the solicitor is acting in the two characters, such items should be treated on taxation as attributable to his character as party to the action, and not to his character as solicitor. London Scottish Perma- nent Benefit Society v. Charley, 13 Q. B. D. 872 ; 53 L. J., Q. B. 551 ; 51 L. T. 100 ; 32 W. E. 781— C. A. Where one of a body of mortgagees is a solicitor, and acts as such in enforcing the mort- gage security, he is entitled to charge profit costs against the mortgagor, whether the mort- gagees are trustees or not. If in such a case the mortgagor, in applying to tax the bill of the solicitor-mortgagee, desires to raise the objection to profit costs, he should state his objection in his petition for taxation. Donald- son, In re, 27 Ch. D. 544 ; 54 L. J., Ch. 151 ; 51 L. T. 622— V.-C. B. d. Wlien Solicitor an lExec^utor or Trustee, Profit Costs.] — A testatrix, after appointing V. and H., who was a solicitor and also one of the attesting witnesses to the will, executors and trustees of her will, declared that H. should be entitled to charge and to receive payment for all professional business to be transacted by him under the will in the same manner as he might have done if he had not been an executor. V. proved the will, and a creditor's action was in- stituted against her. V. employed the firm of solicitors, in which H. was a partner, as her soli- citors in the action. H. afterwards proved the will, and was made a defendant to the action. When the action came on for further considera- tion, a question arose whether H. was entitled to his .profit costs, and an order was made declaring 1779 SOLICITOE— Costs. 1780 that he was not entitled to claim payment of profit costs by virtue of the declaration in the will, he being one of the attesting wit- nesses thereto, such declaration to be without prejudice to any of his rights apart from the clause in the will. The taxing-master dis- allowed H.'s profit costs of action, on the ground that he was a solicitor-trustee, and as such not entitled to make a profit out of Ms trust : — Held, on a summons to review the taxation, that H. was entitled to profit costs of action, but that he was not entitled to profit costs for business not done in the action, and that the rule applied as well to costs incurred before as after he proved the will. Cradocli v. Fipcr (1 Mac. & G. 664) discussed, and held not to have been overruled. Brougliton v. Brmighton (5 D. M. cfe G. 160) discussed. Barier, In re. Burgess v. Vinicomc, Si Ch. D. 77 ; ,56 L. J., Ch. 216 ; 55 L. T. 882 ; 35 W. E. 326— Chitty, J. E., a partner in a firm of country solicitors, was one of two trustees of a will which con- tained no power to charge for professional services. E. and his co-trustee were respondents to an application for maintenance by a next friend on behalf of an infant under the sum- mary procedure of the court, and E.'s firm, through their London agents, acted as soli- citors for E. and his co-trustee and made profit costs : — Held, that E.'s firm were entitled to receive those profit costs as coming within the exception laid down in Cradock v. Piper (1 Mac. & G. 664). Although that case has been often disapproved, it has been so long acted on as a binding authority that it ought not now to be overruled. The exception applies not only to proceedings in a hostile suit, but to friendly proceedings in chambers, such as an application for maintenance of , an infant. Corsellis, In re, Lawton v. Elwes, 34 Ch. D. 675 ; 56 L. J., Ch. 294 ; 56 L. T. 411 ; 35 W. E. 309 ; 51 J. P. 597— C. A. After the death of E.'s co-trustee, E. was made defendant to an administration action in which a receiver was appointed, and E.'s firm, through their London agents, acted for the receiver and made profit costs : — Held, that these profit costs could not be retained by the firm ; on the prin- ciple that a trustee must not place himself in a position in which his interest conflicts with his duty. lb. Preparing Leases.] — E. and his firm made profit costs by preparing leases and agree- ments for leases of portions of the trust estate, which costs were paid by the lessees : — Held, that although the costs were paid by the lessees, the solicitors were employed on behalf of the trust estate, and that E. and his firm must account to the estate for the costs. li. Fees of Steward of Manor.] — E. and his co-trustee appointed E.'s partner steward of a manor which formed part of the trust estate, and fees for manorial business were paid to the steward by the tenants and brought into the partnership accounts : — Held, that the fees, not being received by the steward in his character of solicitor, were not liable to be accounted for to the trust estate. II, Declaration in "Will — Solicitor — Attesting Witness.] — A declaration in a will that a solicitor, who is an executor trustee of the will, may charge profit costs for work done for the testator's estate, confers a beneficial gift or interest on him, within s. 15 of the Wills Act, 1887, and is therefore void where the solicitor trustee has been one of the attesting witnesses of the will. Pooley, In re, 40 Ch. D. 1 ; 58 L. J., Oh. 1 ; 60 L. T. 73 ; 37 W. R. 17—0. A. Charges not strictly Professional.] — A testa- trix by her will appointed her solicitor (who prepared her will) one of her two executors and trustees, and, stating that it was her desire that he should continue to act as solicitor in relation to her property and affairs, and should " make the usual professional charges," expressly directed that notwithstanding his acceptance of the office of trustee and executor he should be en- titled to make the same professional charges and to receive the same pecuniary emoluments and remuneration for all business done by him, and all attendances, time, and trouble given and bestowed by him in or about the execution of the trusts and powers of the will, and the management and administration of the trust estate, real or personal, as if he, not being him- self a trustee or executor, were employed by the trustee or executor. Under this direction the solicitor-executor delivered bills of costs which included charges for all business done by him, whether such business was strictly professional or could have been transacted by a lay executor without the assistance of a solicitor : — Held, that all items which were not of a stnotly pro- fessional character ought to be disallowed. Chappie, In re, Newton t. Clmpman, 27 Ch. D. 584 ; 51 L. T. 748 ; 33 W. E. 336— Kay, J. A testator by his will authorised any trustee thereof, who might be a. solicitor, to make the usual professional or other proper and reasonable charges, for all business done and time expended in relation to the trusts of the will, whether such business was usually within the business of a solicitor or not. On the further consideration of an action for the administration of the testator's estate, an order was made for the taxation of the costs, charges, and expenses of the trustees, and it was directed that the taxmg-master should have regard to the terms of the will as to the costs of the trustees :— Held, that the taxing- master had power to allow to a trustee, who was a solicitor, the proper charges for business, not strictly of a professional nature, transacted by him in relation to the trust estate. Ames, In, re, Ames v. Taylor, 25 Ch. D. 72 ; 32 W. E. 287 -North, J. Remuneration.] — Where estates were devised to a near relative and a family solicitor until B. attained the age of twenty-eight years, upon trust to receive the rents and manage the estate, and the will empowered any trustee being a solicitor to charge and be paid for all business done by him as a solicitor in respect of such estate; and a legacy of lOOZ. was given to each trustee, and the trustees manageid 'the estates consisting of 2,000 acres partly unlet for fi#een years, paying themselves a salary of lOOZ. a year each for the trouble of such management, amounting in all to 3,000Z. ; on an originating summons on behalf of the tenant for life and the infant remainderman : — Held, that such pay- ments of 200Z. a year were unauthorised, by the will .; the trustees might at any time have applied to the court, but they neglected to do 1781 SOLICITOE— Cosfs. 178:4 so ; that it was not a case to follow the coarse adopted in Marshall y. Holloway (2 Sw. 432), where an inquiry was directed as to whether any and what sum should be allowed to the trustees for their trouble. The salary was disallowed, and an order made for payment into court, with- out interest, withjn six months. Bedingjicld, In re, jBeditu/Jield v. :D'M/e, 57 L, T. 332— Kay, J. 3. PAYMENT. Appropriation.] — A solicitor who has made disbursements for his cljent, and who has re- ceived from the client sums paid generally on account, but , suflBcient to cover those disburse- ments, is not entitled to appropriate the sums so received to costs for which he has not delivered a bill, in. order that he may, under s. 17 of the Solicitors Act, 1870, claim interest on the dis- bursements. Morrison, In re, 33 Ch. D. 52 ; 55 L. J., Gh. 768 ; 55 L. T. 72 ; 34 W. B. 645 ; 50 J. P. 372— Per Pearson, J. To Solicitor of Trustees.] — A solicitor dealing with a trustee and having no notice of any bieaoh of trust on his part, is entitled to deal with him on ; the footing that he is executing the trust and doing nothing which is wrong, and is not bound, before he accepts payment out of the trust estate, to call upon the trustee to produce his accounts, and satisfy himself that he has acted properly. To preclude a solicitor from accepting payment out of the trust estate, there must be brought home to him knowledge that at the time when he accepted it the trustee had been guilty of such a breach of trust as to pre- vent him altogether from resorting to the trust estate for payment of those costs, and that, in iact, such a payment was a breach of trust. Bhmdell, In re. Blundell v. Blundell, 40 Ch. D. 370 ; 57 L. J., Ch. 730 ; 58 L. T. 933 ; 36 W. E. 779— Stirling, J. 4. KEGOVEET OF. Solicitor to Trustees— Eights of.] — ^A solicitor employed in trust business is the solicitor of the trustees personally, and has no direct claim on the trust estate for costs. Staniar v. Evans, 34 Ch. D. 470 ; 56 L. J., Gh. 581 ; 56 L. T. 87 ; 35 W. E. 286— North, J. An executor or trustee who properly employs a solicitor or other agent to assist him in the execution of the trust enters into a contract in which he is personally liable, but he is entitled to be indemnified out of the trust estate, not merely against payments actually made, but against his liability, so that he has a right to resort to the trust estate in the first instance for making the necessary payments to the persons whom he employs, though he may commit acts which will deprive him of such right. Blundell, In re, Blundell v. Blundell, supra. Aotions^Promotion of Bill Illegal.] — ^A rural sanitary authority, being unable to acquire by purchase land and water rights necessary for the purpose of procuring a water supply for their district, which it was the duty of the authority to do under the Public Health Acts, instructed their solicitor to promote a bUl in Parliament for the purpose of obtaining powers to purchase- the land and water rights compulsorily : — Held, that the rural sanitary authority had no power to promote such a bill, and that therefore their solicitor could not recover his costs from them.. Cleverion v. St. Germain^s Union, 56 L. J., Q. B.. 83— Stephen, J. Order XIV, — Taxation — Form of Order.], — Where an action is brought on a solicitor's bill of costs, and the defendant admits his liability but desires that the bills should be taxed, the proper order to be made on an application for liberty to sign judgment under Ord. XIV. r. 1, is as follows : — ' ' It is ordered that the bill of costs on which the action is brought be referred to the taxing-master, pursuant to the statute 6. & 7 Vict. 0. 73,. and that the plaintiff give credit at the time of taxation for all sums of money received by him from or on account of the defendant, and let the plaintifi be at liberty to sign judgment for the amount of the master's- allocatur in the said taxation, and costs to be taxed. SmMh v. Edwards, 22 Q. B. D. 10 ; 58 L. J.. Q. B. 227 ; 60 L. T. 10 ; 37 W. E. 112— C. A.' In an action by solicitors on an untaxed bill of costs, the court, on motion by the plaintiffs, under Ord. XIII. r. 2, referred the costs for taxation, subject to credits, and ordered judg- ment to be entered for the amount to be certi- fied. Larkin v. M'Inerney, 16 L. E., Ir. 246 — Ex. D. Taxation, whether Condition precedent.] — It is not a condition precedent of a solicitor's, right to sue a guarantor of costs to be incurred,, that the costs should have been taxed. Moore v. Walton, 1 C. & E. 279— Mathew, J. Bight of Assignee to sign and sue.] — A solicitor assigned his bill of costs and the right, to recover on it, and the assignee gave notice of the assignment, and delivered the bill to the- party to be charged, inclosed in a letter signed by himself. After the expiration of a month he brought an action in his own name on the biU of costs : — Held, that the plaintiBf was an assignee within s. 37 of the Solicitors Act, 1843, and was entitled to maintain the action. Ingle v. M'CutcUan, 12 Q. B. D. 518 ; 53 L. J., Q. B. 311 — D. Signature, Suficiency of.] — Where a solicitor, whose right hand was paralysed, had his hand guided oyer his name, appended to a bill of costs, by a clerk who had written the name : — Held, to be a suflncient compliance with the provisions of s. 37 of the Attorneys and Solicitors Act, 1843. Angell y. Tratt, 1 C. & E. 118 — Lopes, J. Execution — Service of Order and Certificate. ] — A. obtained a common order for taxation of the costs of his former solicitor B., the order directing payment by A. to B. of the amount of the taxed costs within twenty-one days after the service of the order and of the certificate of taxation. The order and certificate were served, not on A. per-, sonally, but on the solicitor then acting for him in the taxation. A. failed to pay the amount within twenty -one days after service of the order- and certificate on the solicitor, .and B. applied, for the issue of a writ of fi. fa. against A. for- 1783 SOLICITOR— Cosis. 1784 the amount, but the officer of the court refused to issue the writ, on the ground that A. had not been personally served with the order and Certificate : — Held, that B. might have the writ at his own risk, without service of the order and certificate on A. personally. Solicitor, In re, 33 W. R. 131— Pearson, J. 5. LIEN FOE. a. What Debts. Not General Debts — Statutory Debt.] — Lien is t!onfined to what is due to the solicitor in that character, and does not extend to general debts. Accordingly the lien of the solicitor of a railway company for his costs does not include costs incurred in relation to the promotion of the company before incorporation, such costs by the usual clause in the act having been made a statutory debt to be paid by the company. Galland, In re, 31 Ch. D. 296 ; 56 L. J., Ch. 478 ; 53 L. T. 921 ; 84 W. B. 168— C. A. Debt Barred by Statute.] — A lieu is not barred fey the fact that the debt in respect of which the lien is claimed is barred, and may be enforced for the purpose of obstructing an administration •action, if the debtor declines to waive his rights under the statute. Carter, In re, CaHer v. Carter, 55 L. J., Ch. 230 ; 53 L. T. 630 ; 34 W. E. 57— Kay, J. b. On what Property. Letters of Administration — Costs of Indepen- dent Proceedings.]— M. and her sister S., had employed F. as their solicitor and as their land agent over a joint property ; and M. was in- debted to him in the amount of certain costs in 1881, when S. instituted a suit against him in the Chancery Division for an account as her land «gent. In September, 1881, F. filed an account in that suit, showing that there was a consider- •Hble balance due to him in respect of the rents. He died insolvent in August, 1882, and no step >was taken to revive the suit against his personal Representatives. The costs due to F. had been incurred by his obtaining for M., in 1869, a grant ■of administration de bonis nou of her late father, limited to receive the dividends on a sum of stock standing in the name of the latter as executor of a will under which the dividends were payable to •a tenant for life, upon whose death M. , having become beneficially interested in the principal, ■obtained in November, 1882, an order from the judge of the Probate Division authorising her to apply for a general grant, so as to obtain a transfer of the stock into her own name. M. thereupon required T. , the solicitor for F.'s personal repre- sentative, to bring in the limited grant for can- cellation, which he declined to do, claiming a lien upon it for the costs due by M. : — Held, that T. was entitled to the lien claimed. Martin, In (joods of, 13 L. R., Ir. 312— C. A. On Documents of Company — Winding up.] — An order having been made for winding up a company, applications were made by the official liquidator against B., a solicitor employed by the company before the winding-up, that B. might be ordered to deliver up the following docu- ments : 1. The share register and minute book, which were in B.'s hands before the commence- ment of the winding-up ; 2. Other documents which came to B.'s hands after the presentation of the winding-up petition, but before the winding-up order ; 3. Documents relating to allotments of shares which had come to B.'s hands before the presentation of the petition. B. resisted the applications on the ground that he claimed a lien. The court ordered that all the documents should be delivered to the liquidator, subject to the lien, if any, of B. : — Held, on appeal, that the order was right as regarded the share register and minute book, for that the directors had no power to create any lien on them which could interfere with their being used for the purposes of the company : — Held, also, that the order was right as to class 2 ; for that a solicitor could not assert against docu- ments which came to his hands pending the winding-up any such lien as would interfere with the prosecution of the winding-up : — But held, that the order for delivery of class 3 must be discharged, for that the winding-up order could not defeat any valid lien existing at the time when the winding-up petition was pre- sented. BeUney v. Ffrench (8 L. E., Ch. 918) and Bougliton v. BougUton (23 Ch. D. 169) distin- guished. Capital Fire Insurance Association, In re, 24 Ch. D. 408 ; 53 L. J., Ch. 71 ; 49 L. T. 697 ; 32 W. R. 260— C. A. Extent of.] — The solicitor of a company cannot acquire a lien for costs upon such books of the company as under the articles of the com- pany or the provisions of the Companies Acts ought to be kept at the registered office of the company. Anglo-Maltese Hydraulic Boch Co., In re, 54 L. J., Ch. 730 ; 52 L. T. 841 ; 33 W. E. 662— Kay, J. Costs of Interlocutory Application.]— Costs awarded upon an interlocutory apphcation are subject to the lien of the solicitor for the party to whom they are given, and cannot be attached by a judgment creditor of the party to the pre- judice of the lien. CormicJi v. Ronayne, 22 L, R., Ir. 140— Ex. D. c. In what Cases. Title-deeds held for Mortgagor and Mortgagee — Costs owing by Mortgagor.] — A solicitor act- ing for mortgagee as well as mortgagor in the preparation of a mortgage thereby loses his lien on the title-deeds in his possession for costs due to him from the mortgagor, even though the costs were incurred prior to the mortgage and the title-deeds never left the solicitor's office. Quinn, Mx parte, Nicholson. In re, 53 L. J., Ch, 302 ; 49 L. T. 811 ; 32 W. &. 296— C. J. B. Documents belonging to Estate — Costs due from Testator, Administrator and Administrator de bonis non.] — There is a privity of estate be- tween an administrator or executor who has partly administered and a subsequent adminis- trator de bonis non, and tlie latter receives the estate with all the liabilities to which it was sub- ject in the hands of the previous administrator or executor. The solicitor of a testator who has afterwards acted for his legal personal repre- sentatives during a partial administration of the estate, and has unpaid bills of costs against both. 1785 SOLICITOE— Cosfs. 1786 the testator and his representatives, is entitled as against a subsequent administrator de bonis non, to a lien upon documents in his hands belonging to the estate for all the costs so owing to him. Watson, In re, 53 L. J., Ch. 305 ; 50 L. T. 205 ; 32 W. E. 477— Pearson, J. Where Solicitor is also a Kortgagee.] — Lands were ordered to he sold on the petition of C, an incumbrancer. 0., who had previously been solicitor for the owner, lodged in court, under an order and subject to his lien for costs due to him by the owner, several deeds and documents re- lating to the lands, including proposals and counterparts of leases under which the tenants held. These deeds and documents (as the court held) had come into the hands of C, as solicitor for the owner. C. was also trans- ferree of a mortgage of the lands, which had been executed to one H., and C. had acted as solicitor for H. and the owner on the occasion of the mortgage. The owner made a private offer for purchase of the lands which was ac- cepted, and took a conveyance. The owner having objected to the claim of lien, on the grounds that the documents were not such as a purchaser would require, and further, that C. had held them not as solicitor but as mortgagee : — Held, that these grounds of objection were un- sustainable, and that C. was entitled to his lien on the deeds and documents lodged under the order. Semble, C. would not have lost the lien by taking a mortgage from the owner for money due other than the costs secured by the lien. Harvey's Estate, In re, 17 L. K., Ir. 65 — Monroe, J. Change of Solicitor. ] — An action was brought for the administration of the estate of H. by his infant grandchildren. The action was brought with the approval of the infants' father, and the next friend was nominated and approved by him. The father having died pending the action, the mother of the infants, who was also their testa- mentary guardian, applied to be appointed next fjiend, in the place of the existing next friend, and an order was made appointing her. She changed the plaintiff's solicitors, and the new solicitors applied to the old solicitors for delivery of the papers in the action. The original solici- tors refused to deliver them till their costs were paid : — Held, upon a summons, that the old solicitors must deliver them over to the new solicitors without prejudice to their lien for costs. The action being a very heavy one, and the taxation of costs not likely to come on for some years, the costs of the original solicitors were under the special circumstances ordered to be taxed at once. ITutoMnson, In re, Hutcliin- son v. Norwood, 54 L. T. 842 ; 34 W. R. GST- North, J. d. Priority. Cliange of Solicitor.] — In 1875 A. commenced an action against a colliery company on behalf of himself and all other debenture-holders. Shortly afterwards the company was ordered to be wound up, and the official liquidator was appointed receiver and manager in the action. In 1881 the plaintiff A. became bankrupt, and in 1882 B., another debenture-holder, was substituted as plaintiff in the action. An order was made directing A.'s solicitor to h.md over the papers in the action to B.'s solicitor, without prejudice to his lien, if any. The colliery was. carried on by the receiver and manager until 1883, when it was sold under an order obtained; in the action by an auctioneer thereby appointed. The purchase-money, which was paid into court, was insufficient to pay the balance found due to the receiver, and the costs of all parties. Tha solicitors of A., the fiist plaintiff, claimed that^ having given up the papers without prejudice ta their lien, they were entitled to be paid their costs in priority to all parties to the action : — Held, that the solicitors of a plaintiff in a, representative action for whom another plaintiff was substituted, are not entitled to be paid their costs out of a fund recovered in the action ia priority to the new plaintiff, or other parties, by reason of any lien they might have upon the papers handed over by them in the action.. Batten v. Wedgwood Coal and Iron Co., 28 Ch.. D. 317 ; 54 L. J., Ch. 686 ; 52 L. T. 212 ; 3a W. R. 303 — Pearson, J. See also Wadsworth^ In re, post, col. 1788. e. When Iiost. Discharge of Eetainer by Solicitor. ] — Whera a solicitor has discharged himself of his retainer- from acting further for his client, he will be compelled, if the client has resolved to further- conduct his own case in person, to deposit tha papers and documents in the cause which he has in his possession in the custody of the officer of' court for a certain period in order that the client may have access to them, although the solicitor has still a lien upon such papers and documents for his unpaid hill of costs. Wontner, In re, Soheyer, Ex jgarte, 52 J. P. 183~D. Affirmed, in C. A., W. K., 1888, p. 136. Where a solicitor applied to his client for funds to carry on an action under a special stipulation in the retainer that such funds should be supplied, and, on the client refusing to pay, declined to continue the suit or deliver up the papers until his taxed costs were paid : — . Held, that this was a discharge by the solicitor, and that he might be called upon to deliver to new solicitors the papers relating to the matters in question in the action. Robins v. Goldingham (13 L. E., Eq. 440) followed. Blucli v. Lovering,^ 35 W. E. 232— D. Loss of Possession — Dissolution of Firm,]^ A firm of solicitors had a lien for costs upon certain documents in their possession. Tha partnership was dissolved, and the firm was reconstituted. Shortly after dissolution, the documents in question were removed from tha office of the firm by a former partner without their consent or permission : — Held, that the lien was not destroyed. Carter, In re, Carter V. Carter, 55 L. J., Ch. 230 ; 53 L. T. 630 ; 34 W. E. 57— Kay, J. Payment into Conrt of Security.] — The court has jurisdiction, upon payment into court, or giving security for a sum sufficient to answer the solicitor's demand, to order before taxation delivery up by a solicitor of the client's papers, where retention by the solicitor of the papers, on which he claims a lien would embarrass the client in the prosecution or defence of pending actions: — Quaere (per Lindley, L.J.), whether- 1787 SOLICITOR— Cosfe. 1788 the iurisdiction is not extended by Ord. L. r. 8. Galland, In re, 31 Ch. D. 296 ; 55 L. J., Ch. 478 ; 53 L. T. 921 ; 84 W. R. 158— ■C. A. f. Set Off. Client indebted to Trust- Estate. ] — Where a person, at the time of an order being made for the payment of his costs by trustees on a petition in the matter of a trust, is indebted to the trust estate, although the amount is not then ascer- tained, he cannot get any of such costs until he has paid the amount due from him to the trust, and the trustees, therefore, can set off the costs payable by them against the amount due from him. His solicitor cannot be in a better position than he is himself, and has no lien on such costs. JSarrald, In re, Wilde v. Walfnrd, 53 L. J. , Ch. 505 ; 51 L. T. 441— C. A. Eeversing 31 W. E. 318— Fry, J. Secus, as to the costs of the trustees incurred in recovering such amount, lb. Cross-Judgments in Separate Actions.] — The ■court, upon an application to set ofE cross- judgments in distinct actions, are entitled, not- withstanding Ord. LXV. r. 14, to order that the set-off shall be subject to the lien for costs of the solicitor of the opposite party — for assuming that r. 14 applies to a set-off in distinct actions, it leaves the court a discretion to allow the set-off, either subject to or notwithstanding the solicitor's lien, and if it has no application the court have the same discretion by the practice previously to Keg. Hil. Term, 1853, r. 63, which, since the repeal of that rule by the new rules, is revived. Edwards v. Hope, 14 Q. B. D. 922 ; 54 L. J., Q. B. 379 ; 53 L. T. 69 : 33 "W. E. 672— C. A. g. Colltision. Compromise of Parties.] — In an admiralty action for wages the plaintiffs and defendants compromised the action by payment to each of the plaintiffs of a certain sum in discharge of the claim and costs. The plaintiffs left the country without paying their solicitors' costs : — Held, that as there was no evidence that the parties had made the settlement, with the inten- tion of depriving the plaintiffs' solicitors of their lien for their costs, the defendants ought not to be ordered to pay the plaintiffs' taxed costs. Brunsdon v. Allard (2 E. & E. 19), Sullivan v. Pearson, Morrison, Mx parte (4 L. K., Q. B. 153) approved. The Hope, 8 P. D. 144 ; 52 L. J., P. €3 ; 49 L. T. 148 ; 32 W. K. 269 ; 5 Asp. M. C. 126— C. A. 6. CHAEGING OEDBES. a. Wlio entitled to. Solicitor Discharged before Trial,] — A soli- citor, through whose instrumentality property has been recovered or preserved in an action, is entitled under the 28th section of the Attorneys and Solicitors Act, 1860, to a declaration of charge upon such property, although his client may have discharged him before the trial of the action. In such a Case his Charge will be subject to the lien for costs of the client's solicitor for the time being. Wadswortk, In re, Rhodes v. Svgden, 29 Ch. D. 517 ; 54 L. J., Ch. 638 ; 52 L. T. 613 ; 33 W. E. 558— Kay, J. London Agents. ] — London agents of a country solicitor have no right to a charge for costs as they are not the solicitors employed by the client. Macfarlane v. Lister, 37 Ch. D. 88 ; 57 L. J., Ch. 92 ; 58 L. T. 201— C. A. Parties to Action cannot obtain Order.] — The Attorneys and Solicitors Act, 1860, is intended for the benefit and protection of solicitors only, and the court will not sanction the use of it for the purpose of enabling parties to an action to charge the property recovered or preserved in the action with the payment of costs for which they themselves are liable, and which they are able to pay. Harrison v. Cornwall Minerals Railway, 53 L. J., Ch. 596 ; 50 L. T. 452 ; 32 W. E. 748 ; 48 J. P. 724— Kay, J. b. In respect of what Costs. In an Action. ] — A company had given notice to take property oompulsorily, the price to be paid was ascertained by arbitration : — Held, that the solicitors who acted for the vendor in the matter \Yere not entitled to a charging order, as the proceedings were not in a court of justice. Macfarlane v. Lister, supra. What allowed on Taxation.] — See Hill, In re, ante, col. 1776. Proceedings in Court where Order made.] — A solicitor is entitled, under 39 & 40 Vict. c. 44, e. 3 (equivalent to 23 & 24 Vict. u. 127, s. 28), to a charge for costs incurred in recovering or pre- serving property, not only against his own client but against all persons entitled to the property. But the charging order must be confined to costs of proceedings in the court where it is made. It docs not extend to miscellaneous costs or costs of proceedings in another court or of a proceeding (e. g., to remit an action to an inferior court) which has been abandoned. Sheolin v. M Grane, 17 L. R., Ir. 271— Prob. Sale of Estate by order of Executrix — Exe- cutrix indebted to Estate.] — A solicitor was allowed a lien on the proceeds of the estate of a deceased person, realised by him under an order of the court, notwithstanding that a balance was due to the estate by his client as executrix, which she was unable to bring into court. White, In re, 17 L. E., Ir. 223— V.-C. c. Property Recovered or Preserved. Money Paid into Court.] — An action having been brought to recover a sum of 727i., C, one of the defendants, counter-claimed against the plaintiff for the sum of 700?. " C. presented 3,lso a petition in bankruptcy against the plaintiff, who was ordered to bring into court a sum of 300Z. The action and the proceedings in bankruptcy ultimately were referred to an arbitrator, who, by his award, found that the plaintiff was entitled to judgment in the action for 157Z., that no debt was due from the plaintiff to C, and that the sum of 300Z. must be paid to the plaintiff out of the Court of Bankruptcy. The plaintiff's soli- 1789 SOLICIT OE— Costs. 1790 citoTS having applied to the Queen's Bench Division for a charging order on the sum of 300Z. for their costs in the action : — Held, that they were not entitled to an order. Pierson v. Knuts- ford Estates Co., 13 Q. B. D. 666 ; 53 L. J., Q. B. 181 ; 32 W. R. 451— C. A. Money paid into court as a security for the costs of a party to an action is not, in case by the success of the party it becomes payable to him, property " preserved " in the action within the meaning of the Act. Wadswortli, In re, Rhodes V. Sv-gden, 29 Ch. D. 517 ; 54 L.) J., Oh. 638 ; 52 L. T. 613 ; 33 W. R. 558— Kay, J. Wife's permanent Maintenance.] — A sum secured to the wife on a dissolution of marriage under a. 32 of the Divorce Act, 1867, is not alimony, and is property in respect of which the court has jurisdiction to grant the wife's solicitor a charging order for costs under s. 28 of the Solicitors Act, 1860 ; but the court will not grant such an order unless the solicitor make out a prima facie case of inability to obtain pay- ment in any other way. Harrison v. Harrison, 13 P. D. 180 ; 58 L. J., P. 28 ; 60 L. T. 39 ; 36 W. R. 748— C. A. Partnership Action— Compromise.] — An action was brought for the dissolution of a partnership and the winding-up of the partnership business. The defendant delivered a defence, and a counter- claim claiming certain remedies against his co- partners. At the trial the parties agreed to compromise the action, including the counter- claim, and an order was made directing the taxation of the costs of all parties, and staying all proceedings except for the purpose of en- forcing the agreement and that order. The agreement, which was set out in the schedule to the order, provided for the dissolution of the partnership, the sale of the partnership property, and that aU costs of the parties should be paid out of the estate. Subsequently the parties made an agreement that a sale of a certain part of the partnership property should be rescinded ; that all litigation should be put an end to, and' the business carried on as before the action. The defendant's solicitor applied for an order charging his costs on the shares, both of the plaintiffs and defendant, in the partnership property, or, in the alternative, on the defendant's share. The defendant was willing that the order should be made as regards his share of the property : — Held, that the solicitor could not have a charging order on the plaintiffs' shares, as they had been in no way recovered or preserved through his instrumentality. Also, that the persons to apply to enforce the order carrying out the agreement were the parties to it, and the solicitor could not apply under it to obtain payment of his costs. Rowlands v. Williams, 53 L. T. 135 — Kay, J. Reversed in C. A. Costs ordered to be refunded.] — Costs paid under order of the court -below and ordered by the Court of Appeal to be refunded are property recovered within the meaning of the 23 & 24 Vict. c. 127, s. 28. Chiy v. ChureUll, 35 Ch. D. 489 ; 56 L. J., Ch. 670 ; 57 L. T. 510 ; 35 W. R. 706— 0. A. An action was dismissed with costs, which were taxed at 298Z. and paid. On appeal this judgment was reversed, leave was given to amend the pleadings, and the action was ordered to proceed on the amended pleadings, and the de- fendants were ordered to repay to the plaintiffs the costs they had received, and to pay to the plaintiffs their costs of the appeal, which were taxed at 165Z. After this the plaintiffs became bankrupt ; —Held, on the application of the solicitors who had acted for the plaintiffs in the appeal, that they were entitled to receive from the defen- dants the 165i!., and also to receive from the de- fendants out of the 298Z. the difference between the 165Z. and the plaintiffs' costs of the appeal taxed as between solicitor and client, and that the balance only of the 298Z., after paying the above difference and the costs of the solicitors and the defendants of the application, was to be paid to the trustee in the bantruptoy. lb. d. Priority. Solicitor discharged before Trial.] — The solicitor who had acted for the plaintiff in the institution and conduct of an action to establish his right to a sum of money was discharged by the client shortly before the trial. The action was continued by new solicitors on behalf of the plaintiff, and judgment was delivered in favour of the plaintiff ordering the defendant to pay him the money. After the trial the former solicitor obtained, under the Attorneys and Solicitors Act, 1860, s. 28, a declaration of charge upon the sum recovered " subject to the lien of the present solicitors of the plaintiff upon the said sum": — Held, that the solicitor who was solicitor at the time the fund was recovered was entitled to a first charge thereon for all his taxed costs of the action, and subject thereto that the discharged solicitor was entitled to such lien as he obtained under his charging order. CormacTt v. Beisley (3 De G. & J. 157) followed. Wadswortli, In re, Rhodes v. Sugden, 34 Ch. D. 155 ; 56 L. J., Ch. 127 ; 55 L. T. 596 ; 35 W. E. 75— Kay, J. landlord's Claim for Rent.] — ^A solicitor who has obtained an order, under s. 28 of the Solicitors Act, charging property preserved with payment of his taxed costs, takes priority over a landlord who, before the charging order, might have, but had not, distrained for rent upon the same pro- perty. Swffield and Watts, In re. Brown, Ex varte, 20 Q. B. D. 693 ; 58 L. T. 911 ; 36 W. E. 584 ; 5 M. B. E. 83-0. A. Solicitor acting for Mortgagor and Mort- gagee — Direction of Client as to Money.] — While a suit for redemption of a mortgaged estate was pending the plaintiff mortgaged his interest in the estate to D. The plaintiff's solicitor in the suit acted for both parties in this mortgage. A company had given notice to take the property compulsorily, but the price had not been ascertained. On the day of the execution of the mortgage to D. the plaintiff wrote to his solicitors and their London agents a letter direct- ing them to pay D.'s mortgage debt out of the first money that should come to their hands from the company, and the solicitors handed this letter to D. with the mortgage deed. After this the price of the land was ascertained by arbitra- tion, in which arbitration the London agents acted as the plaintiff's solicitors, and the price was carried over to the credit of the redemption suit, and left a, balance after paying off the original mortgage debt. After this the solicitors 1791 SOLICITOE. 1792 and their London agents applied for an order charging the fund with their costs in the action and in the arbitration. The court made an order giving them a charge, and decided that they were entitled to priority over D.'s mortgage : — Held, on appeal, that the mere fact that the solicitors acted for D., as well as for the plaintiff, in the matter of the mortgage, did not disentitle them to priority. SneLl, In re (6 Ch. D. 105) distinguished. But held, that the plaintiff's letter was a direction to the solicitors that moneys to come to their hands from the property were to be applied in the first place in paying D., and that they having forwarded this letter to D. were bound by the direction, and could not set up a claim of their own in opposition to it, and were in no better position as to moneys in court than as to moneys which actually came to their hands, and that their charge must be post- poned to D.'s mortgage. Macfarlane v. Lister, 37 Ch. D. 88 ; 57 L. J., Ch. 92 ; 58 L. T. 201— C.A. Garniehee Summons.] — The proceeds of a fi. fa., issued on behalf of the successful plaintiff in an action, were attached in the hands of the sheriff by a garnishee summons from a county court to answer a judgment obtained against the plaintiff in that court. The plaintiff's solicitor in the action, who liad received notice of the service of the garnishee summons, subsequently obtained an order under 23 & 24 Vict. c. 127, s. 28, charging the fund recovered with costs of the action remaining due to him : — Held, that such order was rightly made, and the solicitor's claim was entitled to priority over the claim of the judgment creditor of the plaintiff under the garnishee summons. Dallow v. Garrold, 14 Q. B. D. 543 ; 54 L. J., Q. B. 76 ; 52 L. T. 240 ; 33 W. R. 219— C. A. Claim by Foreign Consul for Payment of Expense of sending Crew of Ship home.] — Salvage actions were brought against an Italian vessel, and she was sold by order of the court. After the salvors had been remunerated, the balance of the fund in court was insuflScient to satisfy the costs of the solicitors who had appeared in the above actions for the parties interested in the ship, and who sought to enforce their claim for such costs by virtue of 23 & 24 Vict. c. 127, s. 28, as well as the claim of the Italian consul in respect of the expenses of send- ing the crew back to Italy. It was proved that by the law of Italy such expenses and the keep of the master and crew ranked next to the salvage payments : — Held, that the claim of the Italian consul had priority to that of the solicitors. The Livietta, 8 P. D. 209 ; 52 L. J., P. 81 ; 49 L. T. 411 ; 5 Asp. M. C. lol-Hannen, P. Partnership Property — Eights of Creditors.] — Where in a partnership action a receiver who was appointed at the instance of the plaintiff, realised the assets and paid into court a fund re- presenting the proceeds of such realisation : — Held, that the solicitors of the plaintiff were entitled to a lien on the fund for their costs in priority to the creditors of the partnership. Jiamer i. Giles (11 Ch. D. 942) explained. Jaclaon v. Smith, Digby, Ex parte, 53 L. J., Ch. 972 ; 51 L. T. 72— Kay, J. Semble, the court in such a case would not make an order declaring the lien in the absence of the creditors. But where one of the creditora was present, and the case was argued on his- behalf, the court appointed him to represent all the creditors. lb. e. Baising Costs. Direction in Order. ] — In the absence of evi- dence that the plaintiff was himself unable to pay the costs, the order ought not to direct the costs to be raised out of the fund, but should merely give liberty to the solicitors to apply as to raising them. li. Time for — Action not finished.] — A decree for administration of a testator's estate was made at the suit of an infant who was entitled to a con- tingent reversionary share in the estate. R. wa» solicitor for the plaintiff and for J. and A., two of the persons eutilled to the other shares. After decree he ceased to be solicitor for these parties, and obtained an order directing taxation of his costs as their solicitor in the action, including the costs of the application, and charging their shares in the estate with the payment of such costs, with liberty to apply to have them raised. Before the cause had been heard, on further con- sideration, he applied to have the costs raised by a sale of the shares charged : — Held, that the application was premature, and that no order ought to be made for raising the costs until the cause was heard on further consideration. Greeih, In re. Green v. Green, 26 Ch. D. 16 ; 54 L. J., Ch. 54 ; 50 L. T. 513 ; 32 W. K. 373— C.A. VII. COTJNTKY SOLICITOE AWD LONDON AGENT. Taxation of Costs.] — See Xelson, In re, ante, col. 1761. Petition — Signature by Agent of Soli- citor.]- iSec Seholes, In re, ante, col. 1754. Bill of Loudon Agent by Solicitor.] — See Johnson and Weatherall, In re, ante, col. 1756. Eetaiuer to Country Solicitor — Issue of Writ by London Firm.] — See Wray v. Kemp, ante, col. 1735. Service of Notice of Motion and Affidavits for Attachment of the Person.] — See Attachmjent. Honey due to Solicitor by Agent — Debtors. Act.] — See Litchfield v. Jones, ante, col. 1742. Power of London Agent to obtain Charging Order.] — See Macfarlane v. Lister, ante- col. 1788. VIII. CHANGE OF SOLICITOES. Taxation of Costs of Ineffectual Sale.] — S::e- Dean, In re, M'ard v. Holmes, ante, col. 17B9. 1793 SPECIFIC PERFOEMANCE. 1794 Charging Order.] — &e Wadsworth, In re, ante, col. 1788. Lien for Costs.] — See Iluteldnson, In re, ante, col. 1785. IX. UNaUALIFIED PRACTITIONERS. Acting as a Solicitor — Attachment for Con- tempt.] — Every person who acts as a solicitor contrary to s. 2 of 6 & 7 Vict. c. 73, is liable to attachment for contempt of court under 23 & 24 Vict. c. 127, s. 26, whether he so acts in the name of any other person or in his own name, unless such person be duly qualified. Although the coui-t will generally adopt the findings of the master as to such conduct, his report is not ■conclusive. Simmons, la re, 15 Q. B. D. 348 ; 53 L. T. 147 ; 33 W. K. 706 ; 49 J. P. 740— D. Conviction.] — S., a partner in a firm of ■coal merchants, wrote to A., who was indebted to the firm for coals, a notice signed by himself, Pleaded, " Final notice before proceeding in ■county court. Unless you pay the sum of 22.S. %d. to the firm of, &c., I shall proceed against you under the above act " :■ — Held, the justices were -wrong in convicting S. of pre- tending to be a solicitor contrary to 37 & 38 Vict. c. 68, s. 12. Symonds v. Incorporated Xaw Society, 49 J. P. 212— D. B., an agent who used to issue county court summonses for people, was authorised by V. to ■write to a debtor of V. for payment. B. sent a "notice signed by himself in the words, " County Courts. Unless the sum of 11. 15.s. M. due to V. is paid I shall proceed against you under the above acts." The real debt due to V. was only \l. 6«. B. being summoned under 37 & 38 Vict. •c. 68, !i. 12 : — Held, the magistrate was right in dismissing the summons, as there was no ■evidence that B. pretended, &c., to act as a solicitor. Incorporated Law Society v. Bedford, 49 J. P. 215— D. Treatment in Prison — "Criminal Pri- soner." ] — A person committed to prison under 6 & 7 Vict. c. 73, s. 32, and 23 & 24 Vict. c. 127, s. 26, for acting as a solicitor, though not duly ■qualified, is a " criminal prisoner " within 28 & 29 Vict. c. 126, s. 4, which enacts that " criminal prisoner shall mean any prisoner charged -with •or convicted of a crime." Such a person is not entitled to be treated as a misdemeanant of the first class by 40 & 41 Vict. c. 21, s. 41. Osborne V. Milman, 18 Q. B. D. 471 ; 56 L. J., Q. B. 263 ; «6 L. T. 808 ; 35 W. E. 397 ; 51 J. P. 437— C. A. Heversing 16 Cox, C. C. 138 — Denman, J. SPECIAL CASE. See reff. sub tit. PSACTlCr, ante, col, 1495. SPECIFIC PERFORMANCE. 1. Tlie Contract. 2. In what Cases. 3. Jurisdiction and Practice, 1. The Contbact. Formation of Contract, &o.] — See ante, Con- TRACT. Variation of written Agreement by oral Proviso.] — By the terms of a written agreement, J. agreed to lease to W. a shop and premises which are to be built at a cost not to exceed 400Z., at the annual rental of 75Z. J. expended 750^. in building the premises, and refused to grant a lease to W. at the annual rent of 151, In an action by W. against J. for specific per- formance of the written agreement, the defen- dant set up as a defence a contemporaneous parol proviso to the agreement, to the effect that, if the outlay exceeded 400Z., the rent was to be raised in proportion : — Held, that, as such parol proviso did not contradict, but merely explained the terms of the written instrument, evidence of it was admissible ; and, as the evidence proved that the plaintiff had agreed to such parol proviso, that the action must be dismissed, Williams v. Jones, 36 W. R. 573— Kekewich, J, Fart Performance — Parol Agreement as to Easement of Light.] — The plaintiff and defen- dant, the owners of adjoining houses, being about to rebuild, entered into a verbal agreement that the plaintiff should pull down a party-waU and rebuild it lower and thinner, and that each party should be at liberty to make a lean-to sky- light with the lower end resting on the party- wall. The plaintiff rebuilt the party-wall and erected a lean-to skylight on his side of it as agreed ; the defendant also erected a skylight on his side, but, instead of a lean-to, so shaped it as to obstruct the access of light to the plaintiff's premises more than the agreed lean-to skylight would have done : — Held, that the effect of thei agreement was to give to each party an easement of light over the other's land ; and that the plaintiff, having performed the agreement on his part, was entitled to have it enforced on the part of the defendant. A mandatory injunction was accordingly granted, the plaintiff being put under a corresponding undertaking. McManus y Coolie, 35 Ch. D. 681 ; 56 L. J., Ch. 662 ; 56 L. T 900 ; 35 W. E. 754 ; 51 J. P. 708— Kay, J. Damages.] — The equitable jurisdiction of part performance cannot be made use of for the purpose of obtaining damages on a contract the specific performance of which is no longer possible ; neither has the Judicature Act, 1873 extended the equitable jurisdiction so as to enable the court to give damages in cases where before the act specific performance would not have been decreed. Zavery v. Pnrssell, 39 Ch. D. 508 ; 57 L. J., Ch. 570 ; 58 L. T. 846 ; 37 W. R. 163— Chitty, J. 2. In what Cases. Agreement by Purchaser to build Wall on Land of Vendor.] — Though the court will not, as 3 M 1795 SPECIFIC PEEFOEMANCE. 179S a rule, specifically enforce contracts to build or repair, it will do so in cases where the contract for building is in its nature defined. Heplwrn V. Leatlier, 50 L. T. 660— V.-C. B. Preliminary Buildingr Agreement.] — The court will not decree the specific performance of a preliminary building agreement, nor give damages for the breach of such an agreement. Wood T. Sileocli, 50 L. T. 251 ; 32 W. R. 845— V.-C. B. Agreement for Lease — Breach of Covenant in Draft Lease. ] — Where a tenant has entered into possession of premises under an agreement for a lease for a term of twenty-one years, such agree- ment not being under seal and consequently void as a lease, the tenant is, until payment of rent, merely tenant at will, and ihe landlord may determine the tenancy by notice without assign- ing any reason for so doing, and may enter under a power of re-entry. Where any rent has been paid by the tenant, the landlord is estopped from denying the existence of a tenancy from year to year upon such of the terms of the agree- ment as are applicable to such a tenancy. The court will not decree specific performance of such an agreement where the tenant has com- mitted a breach of one of the covenants con- tained in the draft lease which has been signed as approved by both the.parties ; and the matter is in no wise affected by s. 14 of the Conveyancing Act, 1881. Coatswortli v. Johnson, 55 L. J., Q. B. 220 ; 54 L. T. 520-0. A. Misdescription — Underlease described as Lease.] — By an agreement, dated the 15th August, 1885, and made between eleven persons described as the committee of Verulam Church and A. L. Waring, the committee agreed to purchase from the said A. L. Waring " his interest in the lease held by him of Verulam Church, in Kennington-lane, for the sum of 550Z." The committee having failed to complete the purchase, A. L. Waring brought an action for specific performance. On the 2nd November, 1887, judgment was given in the said action directing the usual inquiry whether a good title could be made. The chief clerk's certificate, dated 22nd March, 1888, found 'that a good title could be made to a. derivative term of ninety- three and a quarter years from the 25th De- cember, 1824, less three days : — Held, that the words of the agreement took the case out of the authority Of Madeley v. Booth (2 De G; & Sm. 718), and that the plaintiff was entitled to specific performance. Waring v. Scotland, 57 L. J., Ch. 1016 ; 59 L. T. 132 ; 36 W. K. 756— North, J. Agreement to Itake a Boad — Approval of Local Board — Requirements of Local Board inconsistent with Specification.] — The defen- dants agreed to construct a road over land of the plaintiff, who was to grant the defendants a right of way over the road when completed, and to permit it to be declared a public high- way by the local board. Defendants were to make the road according to a plan and specifica- tion already approved by the local board, and to do all things necessary to carry out a resolution passed by the board, that the road should, six months after completion to their satisfaction, be declared by the board a public highway. The specification provided that the pathways should be gravelled, and did not provide for means of lighting. After completion of the road, the board were advised that the road did not comply with the requirements of the Public Health Act, 1875, s. 152, inasmuch as it was not flagged nor provided with means of lighting, and they with- held their sanction to its being declared a public highway. The plaintiff brought an action claim- ing specific performance by the defendants of the agreement, on the ground that they had not done all things necessary to enable the board to. declare the road a public highway, and claiming damages : — Held that, inasmuch as to compel the defendants to construct the road so as to. conform with the provisions of the act would be to enforce performance of terms at variance with the agreement and entirely outside the con- templation of the parties, specific performance could not be ordered. Whether the plaintiff would have been entitled to damages if any had been shown, qu^re. Saunders v. Bradin^ Ilariour Improvement Company, 52 L. T. 426 — North, J. Trustees for Sale — Depreciatory Conditions — Breach of Trust.] — Trustees for sale, in No- vember, 1882, put up land for sale by auction as building land in thirty-three lots, under condi- tions (4) providing that the title should com- mence with a conveyance dated in October, 1872,. and that recitals in any abstracted document should be conclusive evidence ; (6) stating that the land was sold subject to the existing tenan- cies, restrictive covenants, and to all easements, quit-rents, and other incidents of tenure (if any) affecting the same, and providing that the pur- chasers should enter into covenants to perform the covenants and indemnify the vendors. There were no existing tenancies or quit-rents, and the covenants were not stated so as to show only the actual liabilities thereunder : — Held, that, having, regard to the nature of the property and the large number of small lots, the limitation of title in the manner provided by condition (4) was not an xmreasonable exercise of the discretion vested in them as trustees for sale ; but that the 6th condition, suggesting various difficulties which had in fact no existence, was eminently calcu- lated to deter intending purchasers, and that the trustees could not obtain the asastance of the court in enforcing the contract. The court re- fuses to enforce specific performance of a con- tra,ot which is a breach of trust, equally at the suit of the vendors as of the purchasers. Dunn. V. Flood, 28 Ch. D. 586 ; 54 L. J., Oh. 370 ; 52. L. T. 699 ; 33 W. E. 315— C. A. 3. Jurisdiction and Practice. Jurisdiction of County Court.] — Sec Reg. v. Westmorela/nd County Court Judge, ante, coL 547. Bectification and Specific Ferformance.] — Since the Judicature Act, 1873, the court has jurisdiction (in any case in which the Statute of Frauds is not a bar), in one and the same action, to rectify a written agreement, upon parol evi- dence of mistake, and to order the agreement to be specifically performed. Olley v. Fisher, 34 Ch. D. 367 ; 56 L. Jli'Ch. 208 ; 55 L. T. 807 ; 35 W. E. 301— North, J. 1797 SPECIFIC PEEFORMANCE. 1798 Disentailing Assurance — Fines and Becoveries Act.] — The jurisdiction which the courts of equity had prior to the Fines and Eeeoverles Act of de- creeing specific performance of a contract by a tenant in tail to bar the entail by ordering him to levy a fine or suffer a common recovery for the purpose, and enforcing the order as against the tenant in tail personally by the process of contempt, has not been excluded by s. 47 of the Fines and Eecoveries Act, and the court can still as against the tenant in tail himself decree specific performance of a contract to execute a disentailing assurance, although the contract is not enforceable as against the succeeding issue in tail. Bankes v. Small, 36 Ch. D. 716 ; 56 L. J., Ch. 832 ; 57 L. T. 292 ; 35 W. E. 765— C. A. Waiver of Construction of Agreement.] — Where a written agreement has been signed, though it is in some cases a defence to an action for specific performance according to its terms that the defendant did not understand it accord- ing to what the court holds to be its true con- struction, the fact that the plaintiff has put an erroneous construction upon it,, and insisted that it included what it did not include, does not pre- clude the plaintifE froxa waiving the question of construction and obtaining specific performance according to what the defendant admits to be its true construction. P^'eston v. Luok, 27 Ch. D. 497 ; 33 W. E. 317— C. A. What Plaintiff must Establish.] — A plaiutiffi in an action for specific performance of a con- tract for a sale of land must prove readiness and willingness on his own part, and repudiation of the contract on the defendant's part does not relieve the plaintiff from this obligation. Mills T. Rogers, 50 L. T. 660— Kay, J.' Effect of Delay.] — On a sale of real estate the purchaser paid 500Z., which was stated in the contract to be paid " as a deposit, and in part payment of the purchase-money." The contract provided that the purchase should be completed on a day named, and that if the purchaser should fail to comply with the agreement, the vendor should be at liberty to re-sell and to recover any deficiency in price as liquidated damages. The purchaser was not ready with his purchase- money, and after repeated delays, the vendor re-sold the property for the same price. The original purchaser having brought an action for Specific performance : — Held, that the purchaser had lost by his delay his right to enforce specific performance. Howe v. Smith, 27 Ch. D. 89 ; 53 L. J., Ch. 1055 ; 50 L. T. 573 ; 32 W. B. 802 ; 48 J. P. 773— C. A. Damages — Judicature Act — Lord Cairns' Act.] — TTrider the Judicature Act, 1873, the court has complete jurisdiction both iii law and in equity ; so that, whether the court could in a particular case grant specific performance or not, it could give damages for breach of the agreement. Mmore v. Pirrie, 57 L. T. 333— Kay, J. Under Lord Cairns' Act, the plaintiff had first to make out that he was entitled to specific per- formance before he could get damages at all ; now he' may come to the court and say, " If you thinlj I am not entitled to specific performance of the whole or any part of the agreement, then give me damages." li. The Judicature Act, 1873, s, 25, sub-s. 11, does not extend the equity jurisdiction so as to enable the court to grant damages in a case wherein before the act damages were not recoverable, e.g. , in the case of an oral agreement not capable of specific performance in equity, and in respect of which, in an action at law for damages, the defendant could have successfully pleaded the Statute of Frauds. Northumberland Avenue Hotel Cow/pawg, In re, Sully's Case, 54 L. T. 76 — Chitty, J. See also Lavery v. Purssell, ante, col. 1794. Plaintiff by his own Act unable to Per- form Contract.] — The plaintiff by his statement of clailu claimed specific performance of a con- tract by which he agreed to s6ll, and the defen- dant agreed to purchase, the lease, goodwill, fixtures, and stock-in-trade of a business ; the plaintifi! alleging that he was and always had been able and willing to perform the contract, but that the defendant refused to perform the same. The statement of claim in the alternative claimed lOOZ. as liquidated damages fixed by the contract for the refusal to perform the contract. The defence set up certain alleged false represen- tations by the plaintiff as to the character of the business, and denied that the plaintiff was able and willing to perform the contract. The plaintiff, after the close of the pleadings, gave notice to the defendant that, unless the defendant completed the purchase within a week, he should re-seU the business, which he accordingly did. No amendment of the pleadings was then asked for by the plaintiff, and the action went on to trial. At the trial the plaintiff's counsel, ad- mitting that the claim for specific performance must be abandoned, sought to recover the lOOZ. as liquidated damages. He did not apply for any amendment of the pleadings : — Held, that the action must be treated as one for specific performance with a claim for damages in the alternative as a substitute for specific perform- ance, according to the practice existing before the Judicature Act in the Court of Chancery, and that the plaintiff, having by his own act rendered specific performance impossible, was not in such action entitled to damages. Hip- gram V. Case, 28 Ch. D. 356 ; 54 L. J., Ch. 399 ; 52 L. T. 242— C. A. Delay in Giving Possession — loss of Tenant and Deterioration,] — Two houses, stated in the particulars to have been " recently in the possession of F.," were put up by the plaintiffs (mortgagees from F.) for sale by auction, and were bought by the defendant. A day-was fixed for completion of the purchase, when the rents or possession were to belong to the purchaser. At that day F. was still in possession, and re- mained so until he was turned out by the sheriff, more than a month after. The purchaser had agreed to let the houses to a tenant as from a day five days later than the day fixed for completion, but the tenant, finding that he could not have immediate possession, had refused to take the houses, which had remained unoccupied, and had also been damaged by the' removal of some fixtures and otherwise. The vendors brought an action for specific performance simply. The de-: fendant counterclaimed for specific pferfpiTsiance, with compensation : — Held, that the purchaser was entitled to damages in the nature of com- pensation ioi loss of a tenant, and that tlie damages would be the amount of rent lost, and 3 M 2 1799 SPECIFIC PERFORMANCE. 1800 that the purchaser was entitled to damages for the deterioration of the property. Bain v. Fothergill (7 L. R., H. L. 158) distinguished. PUllips V. Silvester (8 L. E., Gh. 173) followed and discussed. Royal Bristol Permanent Building Society v. Bomash, 35 Ch. D. 390 ; 56 L. J., Ch. 840 ; 57 L. T. 179— Kekewich, J. Delay — Bight of Way,] — The purchaser of a piece of land agreed, as part of the consider- ation, to grant within a giTen time to the vendor a right of way, and to make a road with sewers leading to other land belonging to the vendor. The purchaser was unable to grant the right of way or to make the road and sewers until long after the time fixed, and the vendor brought an action for specific performance and for damages as the other land had remained unproductive until the road was made : — Held, that judgment for specific performance with costs must be given but no damages, as the contract was for a sale of real estate ; there being no distinction between ■a, contract to grant a right of way and make a road and sewers, and a contract to sell real estate. The principle on which in such a case damages would be assessed, discussed. Rowe v. London School Board, 36 Ch. D. 619 ; 57 L. J., Ch. 179 ; 57 L. T. 182— Kekewich, J. Defences — Sale hy Auction — Fictitious Bid- ding by Stranger,] — It is no defence to an action for specific performance brought by the vendors against the purchaser at a sale by auction, that unknown to the vendors a fictitious bidding was made, and that the purchaser was thereby In- duced to give more than he had previously bid, which was more than the reserved price. On a sale by mortgagees under the direction of the court in a foreclosure action, the mortgagees are ordinary vendors, and are not liable for the acts of other parties to the action. Union Bank v. Munster, 37 Ch. D. 51 ; 57 L. J., Ch. 124 ; 57 L. T. 877 ; 36 W. K. 72 ; 52 J. P. 453— Keke- wich, J. Non-mutuality.] — The doctrine of non- mutuality being a bar to specific performance, does not apply to a contract which to the know- ledge of both parties cannot be enforced by either until the occurrence of a contingent event. Wylson V. Dunn, 34 Ch. D. 569 ; 56 L. J., Ch. 855 ; 56 L. T. 192 ; 35 W. E. 405 ; 51 J. P. 452— Kekewich, J. Defendant not appearing at Trial — Judg- ment. J — In an action by a vendor for the specific performance of an agreement to purchase real estate, the purchaser having accepted the title, but having failed to complete at the time fixed, there being a condition empowering the vendor, in case of the failure of the purchaser to comply with any of the conditions of sale, to forfeit the deposit and resell the property : — Held, that, in lieu of judgment for specific performance, a declaration may be made, even though the defendant had not appeared to the writ, that the vendor was entitled to forfeit the deposit and resell the property, if the writ has claimed such a declaration in the alternative. But held, that the order should direct plaintifi to pay the costs of the action. Stone v. Smith (35 Ch. D. 188) distinguished. Kingdom v. £irk, 37 Ch. D. 141 ; 57 L. J., Ch. 328 ; 58 L, T. 383 ; 36 W, E. 430— North, J, In a vendor's action to enforce a contract to purchase leaseholds, the defendant delivered a defence admitting that he was unwilling to complete the contract, and did not appear at the trial :— Held, that the plaintiflE was not en- titled to immediate judgment rescinding the contract and forfeiting the deposit, but only to the usual judgment for specific performance. Stone V. Smith, 35 Ch. D. 188 ; 56 L. J., Ch. 871 ; 56 L. T. 333 ; 35 W. B. 545— Kekewich, J, Ordering Possession to be given up— Pay- ment into Court.]— The Metropolitan Board of Works gave notice to the plaintiff of their intention to acquire houses occupied by him under their statutory powers. They afterwards agreed to purchase the houses, on a representation by the plaintiff that he held them as a lessee for twenty-one years. The board, on investigating the title, discovered that the lease could be put an end to by the landlord or the tenant at the end of seven or fourteen years, and on that ground claimed an abatement in the purchase- money. The plaintiff refused to make the abatement, and brought an action against the board for specific performance of the agreement. The board then moved in the action for an order giving them possession of the houses on their paying into court the amount of the agreed price with interest, and Pearson, J., made the order : — Held, on appeal, that Pearson, J„ had, ander a mistake, acted on analogy to the Land Clauses Act, 1845, but that he had no power to do so where, as in this case, the statutory require- ments had not been strictly complied with. Bygrave v. Metropolitan Board of Works, 32 Ch. D. 147 ; 55 L. J., Ch. 602 ; 54 L. T. 889 ; 50 J. P. 788— C. A. Refusal to obey Order of Court — Sxecutiou of Lease.] — A decree was made for specific performance of an agreement to grant a new lease of certain premises, and the defendant was ordered to execute such new lease to the plaintiff. The defendant having refused to obey the order, the plaintiff moved for leave to issue a writ of attachment against her: — Held, that there having been a decree for specific performance, the court had jurisdiction under s. 30 of the Trustee Act, 1850, to appoint a person to execute the lease in place of the defendant, and the motion was directed to be amended accordingly. The motion having been amended, an order was made declaring the defendant a trustee of the premises within the meaning of the Trustee Act, and a person was appointed in place of the defendant to execute the lease to the plaintiff. Sail V. Hale, 51 L. T. 226— Kay, J. See now 47 & 48 Vict. c. 61, s. 14. Rescission after Decree — Costs.] — ^After a decree for specific performance of a contract, if the party in whose favour the decree has been made is unable, or neglects to carry the decree into effect, the person against whom the decree was made is entitled to an order for rescission of the contract, retaining the benefit of any direc- tion as to costs of the action, but not to damages or to occupation rent. He is also entitled to the costs of obtaining the order for rescission. Ilcnty V. Schroder (12 Ch. D. 666), Foligno v. Martin (16 Beav. 586), and Watson y. Cox (15 L. R., Eq. 219), explained and followed. Sweet 1801 STATUTES. 1802 T. Meredith (i GifE. 207) not followed. Hutcli- ingg V. Humphivys, 54 L. J., Ch. 650 ; 52 L. T. 690 ; 33 W. B. 563-A''orth, J. Conditional Order for Payment — Delivery of Deeds.] — The decree in a vendor's action for specific performance directed that, on the plaintiff executing an assignment and delivering to the defendant the deeds and writings relating to the property, the defendant should pay to the plaintiff the amount certified to be due for purchase-money, interest, and costs. The plain- tiff executed the assignment, and tendered the deeds to the defendant. The defendant refused to receive the deeds, or to pay the money. The plaintiff moved for leave to issue execution for the amount certified to be due, on the ground that he had performed the condition : — Held, that the plaintiff must deposit the executed assignment and the deeds in court, and on such deposit an order should be drawn up that the defendant should pay the amount certified and the costs of the motion within four days. Bell V. Dcnvii; 54 L. T. 729 ; 34 W. K. 638— North, J. Form of Order.] — Form of order on further consideration in an action for specific performance by vendor where the defendant has persistently endeavoured to evade the judgment. Morgan v. Brisoo, 31 Ch. D. 216; 55 L. J., Ch. 194 ; 53 L. T. 852 ; 34 W. E. 193— V.-G. B. Form of four-day order in an action by vendor for specific performance, where the defendant has persistently endeavoured to evade both the judgment and the order on further consideration. Morgan v. BHsco, 32 Ch. D. 192 ; 54 L. T. 230 ; 34 W. R 360— V.-C. B. Costs.] — ^A vendor is entitled to costs of action, if he showed and offered a good possessory title before action, though it is not proved till after- wards in chambers. Games v. Bonnor, 54 L. J., Ch. 517 ; 33 W. K. 64— C. A SPECIFICATION. Of Patents.]— &e Patent, II. Of Work.]— &•« Building Contbacts. STAGE CARRIAGE. See METROPOLIS, IV. STAKEHOLDER. See INTERPLEADBB. STAMPS. See REVENUE. STANNARIES. See COURT. STATUTES. I. CONBTEUCTION. 1. Generally, 1802. 2. AvoidaTice of Transaetiong, 1806. 3. Kuisance authorised, 1806. 4. Betrospectixe Effect, 1807. 5. Repeal when Implied and otherwise, 1808. 6. Particular Words, 1810. II. Waivbe of Statutokt Rights, 1810. III. Remedies for Bebach, 1811, , I. CONSTRUCTION. 1. Generally. Effect of, on Crown.] — Assuming that the Lands Clauses Act would have been read into the special act of 1855, in any ordinary case, can this be done in the case of these commis- sioners, who it is said represent the Crown, and are in fact the Crown, the Crown not being mentioned in the Lands Clauses Act? The Lands Clauses Act is brought into the Act of 1855 by reference, and the legal effect of its incorporation is this, that the moment the later act is passed, it must be considered that the legislature has written into it the provisions of the Lands Clauses Act, and, if that be so, the Act of 1855, in dealing with these commissioners, if they are to be taken to be the Crown, is deal- ing with the Crown itself. Therefore, the objec- tion that the Crown is not mentioned in the Lands Clauses Act, falls to the ground. Wood's Estate, In re, Commissioners of Worhs and Buildings, Ex parte, 31 Ch. D. 607 ; 55 L. J., Ch. 488 ; 54 L. T. 145 ; 34 W. R. 375— Per Lord Esher, M.R. Application of English Acts to foreign Pro- perty.] — There is a general rule of construction that English acts of parliament, when dealing with property in general, are not to be treated as applying to foreign or colonial property. 1803 SI AIlVTES— Construction. 1804 votquiwun V. BrooliS, 19 Q. B, D, 406 ; 57 L. J., Q. B. 70 ; 57 L. T. 448 ; 36 W. B. 332— Per Wills, J. Penal Statute.] — If you treat the Debtors Act as an act which authorises the court to commit people to prison, it is a highly penal act affect- ing the liberty of the subject, and you must construe it strictly. Scott v. Morley, 20 Q. B. D. 126 ; 57 L. J., Q. B. 43 ; 57 L. T. 219 ; 36 W. E. 67 ; 52 J. P. 230 ; 4 M. B. K. 286— Per Lord Bsher, M.E. Private Act.] — A private act of parliament will be construed more strictly than a public one as regards provisions made by it for the benefit of the persons who obtained it, but, when once the true construction is ascertained, the effect of a private act is the same as that of a public act. Altrincliam Union v. Cheshire Zuies Committee, 15 Q. B. D. 597 ; 50 J. P. 85 — C. A. Ordinary Meaning — ^Application to Subject- matter.] — Whenever you have to construe a statute or a document you do not construe it according to the mere ordinary general mean- ing of the words, but according to the ordinary meaning of the words as applied to the subject- matter with regard to which they are used, unless there is something which obliges you to read them in a sense which is not their ordinary sense in the English language as so applied. Ziion Insurance Association v. Tucker, 12 Q. B. D. 186 ; 53 L. J., Q. B. 185 ; 49 L. T. 764 ; 32 W. E. 546— Per Brett, M.E. Intention, of Legislature.] — Where the main object and intention of a statute are clear it must not be reduced to a nullity by the drafts- man's utskilfulness or ignorance of law, ex- cept in the case of necessity or the absolute intractability of the language used. Salmon v. Bwneomie, 11 App. Cas. 627 ; 55 L. J., P. C. 69 ; 55 L. T. 446— P. C. The ordinary meaning of the words used in a statute must be adhered to unless that meaning is at variance with the intention of the legis- lature to be collected from the statute itself or leads to some absurdity or repugnance. Pieter- maritzburg (_Mayor') v. Natal Land Company, 13 App. Cas. 478 ; 58 L. J., P. C, 82 ; 58 L. T. 895— P. C. Injustice modifying plain Language.] — A very strong case of injustice arising from giving the language of an Act of Parliament its natural meaning must be made out before the court will construe a section in a way con- trary to the natural meaning of the language used. Mall, In re, 21 Q. B. D. 141 ; 57 L. J., Q. B. 494; 59 L. T. 37 ; 36 W. E. 892— Per Cave, J. Two Meanings — One causing Injustice.] — If the words of an Act of Parliament, though capable of an interpretation which would work manifest injustice, can possibly within the bounds of grammatical construction and reason- able interpretation be otherwise construed, the court ought not to attribute to the legislature what is a clear, manifest, and gross- injustice. Plumstead Board of Works v. Spademan, 13 Q. B. D. 878 ; 53 L. J., M. C. 142 ; 51 L. T. 760; 49 J. P. 132— Per Brett, M.E. S. P. Reg. v. Toniridge Overseers, per Brett, M.E., infra. Powers given to Local Authority.] — If there are two possible constructions, we ought, I think, to adopt that construction which is based on the theory that the legislature only gave such powers as were necessary to enable the local authority to carry out the objects of the statute, and that we ought not to presume that the legislature intended to confer upon the local authority any larger powers than were necessary. Wandsworth Board of Worhs v. United Tele- phone Company, 13 Q. B. D. 904 ; 53 L. J., Q. B. 457 ; 51 L. T. 148 ; 32 W. E. 776 ; 48 J, P. 676 — Per Bowen, L.J. Contradicting other Statutes.] — If it is found that reading enactments in their ordinary sense, they would contradict some other enact- ments, but that reading them in a sense in which, though not their ordinary sense, they were reasonably capable of being read, they would not contradict such other enactments, then I agree that they should be read so that aU the enactments should be read together without contradicting each other. Beg. v. Toniridge Overseers, 13 Q. B. D. 342 ; 53 L. J., Q. B. 489 ; 51 L. T. 199 ; 33 W. E. 24 ; 48 J. P. 740— Per Brett, M.E. Argument of Inconvenience.] — With regard to inconvenience, I think that it is a most dangerous doctrine. 1 agree if the in- convenience is not only great, but what I may call an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if you read it in a manner in which it is capable of being read, though not its ordinary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary granamatical meaning. n. Wresting Words when superfluons. ] — Nothing can be more mischievous than the attempt to wrest words from their proper and legal mean- ing, only because they are superfluous. Hon^h V. Windus, 12 Q. B. D. 229 ; 53 L. J., Q. B. 165 ; 50 L. T. 312 ; 32 W. E. 452 ; 1 M. B. E. 1— Per Selbome, L.C. Policy of a Statute.] — It is never very safe ground in the construction of a statute, to give weight to views of its policy, which are them- selves open to doubt and controversy. Municipal Building Society v. Kent, 9 App. Cas. 273 ; 53 L. J., Q. B. 290 ; 51 L. T. 6 ; 32 W. E. 681— PerSelborne, L.C. Interference with Common Law Eights.]— The fact that statutes interfere with a plaintiff's common law rights is no reason why they should be construed differently from any other Acts of Parliament. The Warhworth, 9 P. D. 21 ; 53 L. J., P. 4 ; 49 L. T. 715 ; 32 W. E. 479 ; 5 Asp. M. C. 194— Per Butt, J. Injuring Persons without Compensation.] — It is a proper rule of construction not to construe an Act of Parliament as interfering with or in- juring persons' rights without compensation, unless one is obliged to so construe it. Attorney- General V. Horner, 14 Q. B. D. 257 ; 54 L. J., 1805 ST ATU TE S— Construction. 1806 Q. B. 232 ; 33 W. E. 93 ; 49 J. P. 326— Per Brett, M.R. Applicable to particular Trade.] — ^An Act of Parliament which is made applicable to a large trade or business should be construed, if possi- ble, not according to the strictest and nicest interpretation of language, but according to a reasonable and business interpretation of it with regard to the trade or business with which it is dealing. It seems to me impossible reasonably to hold that those who have to regulate a large "trade or business should be supposed to have made an enactment which would prevent that trade or busiuess from being carried on, unless you are forced to come to such a conclusion by the language. The Bvmelm, 9 P. D. 171 ; 53 L. J., P. 81 ; 51 L. T. 214 ; 32 W. E. 970 ; 5 Asp. i>l. C. 304— Per Brett, M.R. Act divided into Farts with Headings.] — Remarks as to the effect upon interpretation of heirs, but survived to the others ; and, there- fore, that the estate was now vested in the four surviving daughters of the deceased sister. Berens v. Fellowes, 56 L. T. 391 ; 35 W. E. 356 —Kay, J. . Mortgage in joint Names of several Persons.]— ^Mortgages in fee were taken in the name of three sisters as joint tenants, each of the deeds containing a clause by which it was declared that the mortgage money belonged to the mortgagees on a joint account in equity as well as at law. The money advanced on the security of the mortgages formed part of the proceeds of the estate of a brother, to which the three sisters were, under his will, entitled as tenants in common. Having regard to this fact and the other facts in evidence : — Held, that notwithstanding the insertion of the joint ac- count clause the mortgagees were entitled to the mortgage money as tenants in common. JaoTt- ■lon, In re, Smith v. Sibtliorpe, 34 Ch. D. 732 ; 56 L. J., Ch. 593 ; 56 L. T. 562 ; 35 W. E. 646— North, J. 4. Tbnanct in Common. House — Bepairs — Contribution.] — One tenant in eoDMuon of a house who expends money on ordinary repairs, not being such as are necessary to prevent the house from going to ruin, has lio right of action against his co-tenant for contri- bution. Leigh v. Bioheson, 15 Q. B. D. 60 ; 54 L. J., Q. B. 18 ; 52 L. T. 790 ; 33 W. R. 538— C. A. Action for Use and Occupation.] — Where one tenant in common has by lease demised his interest to his co-tenant in common, if the tenant in common who was lessee continues in occupa- tion as tenant at sufferance after the expiration of the lease, he wUl be liable in an action for use and occupation at the suit of his co-tenant in common who was lessor. lb. Bailiff in Possession — ^Accounts.] — See Hobls, In re, ante, col. 971. Joint Tenancy or Tenancy in Conuaou.]r— ^ee sn;ira. 5. Tenants in Tail. Sale by — Further Assurance — Base Fee — Future Estate.] — On a sale by a tenant in tail in remainder who had disentailed without the concurrence of the tenant for life, the tenant ia tail covenanted that he would execute every disentailing and other assurance for further or- more perfectly assuring the premises as the pur- chaser should reasonably require : — Held, on the construction of the whole deed, that under this, covenant the tenant in tail was bound to execute a disentailing deed after the death of the tenant for life. Davis v. ToUemaehe (2 Jur., N. S. 1181^ observed upon. Banltes v. StmM, 36 Ch. D. 716 ; 56 L. J., Ch. 832 ; 57 L. T. 292 ; 35 W. R. 765— C. A. Disentailing Assurance — Copyholds — Post- Nuptial Settlement.] — ^A feme covert entitled to an equitable estate tail in copyholds at B. exe- cuted in February, 1870, a deed declaring that such copyholds should be held in trust for such persons as she and her husband should jointly appoint, and default for herself in fee. The deed was duly acknowledged, but was not entered upon the court rolls of the manor within six months after execution. By a deed of settle- ment dated in March, 1870, she and her husband purporting to exercise this joint power, appointed the copyholds at B., and also covenanted to sur- render those and other copyholds to which she was entitled in fee, to trustees upon trust to sell, invest the proceeds, and hold the fund (in the events which happened) for her for her separate use for life, then for her husband for life, and then for her children other than her eldest son. No sale or surrender of any of the copyholds was ever made. The feme covert had several chil- dren, and after the deaths of her and her hus- band the trustee of the settlement petitioned, that all the copyholds might vest in him for all the estate therein of the eldest son and customary heir, who was an infant ; and the court made a vesting order according to the prayer of the petition : — Held, first, that the deed of February, 1870, being a mere declaration of trust by the tenant in tail, and not a " disposition " within, the Fines and Recoveries Act, was inoperative as an assurance to bar the estate tail in the copyholds at B. Secondly, that in concurrence with Honywood v. Foster (30 Beav. 1) and Gibbons v. Snape (1 De G-. J. & S. 621), and upon the construction of the statute, that, taking s. 41, together with ss. 50 and 53 of the Fines and Recoveries Act, a disentailing assurance by an equitable tenant in tail of copyholds, which is not entered upon the court rolls of the manor withiu six months after execution, is void ; and consequently that the power of appointment which the deed of February, 1870, purported to create could not be exercised. Thirdly, that the settlement of March, 1870, was not a disposition by the feme covert within the Act, and could not be treated either as an assignment of her equit- able interest in the copyholds or as a valid de- claration of trust, or as anything more than a mere covenant to surrender. Fourthly, that the petition for a vesting order must be treated as an action by the persons interested under the settlement to enforce the covenant therein con- tained for the surrender and settlement of the copyholds, and that although the interchange of estates between the husband and wife imported a valuable consideration as between them, the settlement being post-nuptial, was voluntary as regarded the children of the marriage, who were strangers to the contract, and consequently that the court would not interfere in their favour, 1823 TENDER— THEATEE— TIMBER. 1824 and the order appealed from must be discharged. Green v. Paterson, 32 Ch. D. 95 ; 56 L. J., Ch. 181 ; 54 L. T. 738 ; 84 W. E. 724— C. A. Specific Performance of Contract to Ixecute.J— /Ssfi Ba-iiluis v. Small, ante, col. 1797. By Infant Female — Omitting Property — Mistake.]— &'C Mills v. Fox, ante, col. 969. TENDER. Defence — Action for unliquidated Damages.] — A defence of tender of the sum paid into court cannot be pleaded to a claim for unliquidated ■damages. Davys v. Richardson, 21 Q. B. D. 202 ; 57 L. J., Q. B. 409 ; 59 L. T. 765 ; 36 W. B. 728 — C. A. Payment into Court with Plea. ]— &-e Davys V. Ricliardsou, ante, col. 1427. THAMES. "Watermen.] — See Shipping, II. Collisions in.]— &« Shipping, XII. 2, f. THEATRE. Having or keeping a House for the Public Performance of Stage Plays.]— The appellant was the owner and occupier of a building which he gratuitously allowed to be used on a few •occasions for the performance of stage plays, to which the public were admitted on payment, for the benefit of a charity. The appellant had no licence for the performance of stage plays in ^uch building : — Held, that he was rightly con- victed, of having or keeping a house for the public performance of stage plays without a licence, under 6 & 7 Vict. c. 68, s. 2. Skelley v. Betliell, 12 Q. B. D. 11 ; 53 L. J., M. C. 16 ; 49 J.. T. 779 ; 32 W. E. 276 : 48 J. P. 244— D. THIRD PARTY. See PRACTICE. TIMBER. Windfalls — Bealand Personal Estate — Tenant Jor Life.] — A testator devised estates upon which there were plantations of larch trees. At the time of his death a great number of the larch trees had been more or less blovra down by extra- ordinary gales. It was held by Pearson, J., that as between the devisees and the executors of the testator the trees which had been blown down to such an extent that they could not grow as trees usually grow, were severed and belonged to the executors, and that the trees which were merely lifted but would have to be cut for the proper cultivation of the plantations belonged to the devisees : — Held, that having regard to the maxim " quicquid plantatur solo, solo cedit," the prin- ciple applicable was that if a tree was attached to the soil it was real estate, and if severed, personalty ; that the life and manner of growth of any particular tree was no test of its attach- ment to the soil, and that the degree of attach, ment or severance was a question of fact in the case of each particular tree. Ainslie, In re, Swinhwn v. Ainslie, 30 Ch. D. 485 ; 55 L. J., Ch. 615 ; 53 L. T. 645 ; 33 W. E. 910 ; 50 J. P. 180— C. A. Capital or Income.]— A large part of the income of a settled estate was derived from the thinnings and cuttings of larch plantations, and, during a tenancy for life, high winds blew down a very large proportion of the larches, and it became necessary for the good cultivation of the estate to remove almost the whole of those which remained. It was estimated that it would take forty years for the plantations to yield the same income as before : — Held, that the tenant for life was not entitled to receive the proceeds of sale either of the trees not blown down but which had to be removed, or of the trees which were actually blown down, but that the whole of the proceeds of sale must be invested as capital. But held, that the tenant for life was entitled to receive out of the income arising from the invested fund and the plantations a fixed annual sum, equal to the average income which would have been derived from the plan- tations if no gales had occurred — such sum, if necessary, to be made up out of capital ; the trustees to be at liberty to have recourse to the investments or the income of the plantations for the purpose of fresh planting. Harrison, In re, Harrison v. Harrison, 28 Ch. D. 220 ; 54 L. J., Ch. 617 ; 52 L. T. 204 ; 33 W. R. 240— C. A. Tenant in Tall restraining Tenant for life from cutting— Ornamental or sheltering Timber.] — The pl.aintifE was tenant in tail in remainder, and the defendant tenant pur autre vie of an estate settled in 1855. At the date of the settle- ment there was no mansion-house on the estate, but one was acquired in 1859 by exchange under a power in the settlement. The defendant felled certain trees in the vicinity of the mansion- house, marked others for cutting, and advertised a sale of timber ; the plaintifE applied for an injunction : — Held, that there must be an inquiry in the form adopted in Marker v. Marher (9 Hare 1), as to what trees could be cut without impairing the beauty of the place, or the shelter given to the mansion-house, as at the acquisition thereof in 1859 ; an undertaking by the plaintifE in damages, and an injunction as prayed, but conditional on the plaintifE giving such under- taking. Ashhy V. Hindis, 58 L. T. 557 — Stirling, J. 1825 TIME— TITLE— TOLLS. 1826 TIME. Generally.] — See Practice, ante, col. 1496. Tor Appeal.] — Sec Appeal. "Forthwith."]— Where an order for the dis- charge of a patient has been given under 8 & 9 Vict. c. 100, s. 72, by the person who signed the order for the reception of such patient, the pro- prietor of the asylum is bound to discharge the patient forthwith, that is, as soon as practically possible under the circumstances. Lowe v. Fox, 15 Q. B. D. 667 ; 54 L. J., Q. B. 561 ; 53 L. T. «86 ; U W. K. 144 ; 50 J. P. 244— C. A. See mil, Ma parte, ante, col. 204. " Not less than" Fourteen Bays.] — An interval of not less than fourteen days which is to elapse between two acts done is an interval of fourteen clear days exclusive of the days on which such acts were to be done. Railway Sleepers Supply Company, In re, 29 Ch. D. 204 ; 54 L. J.. Ch. 720 ; 52 L. T. 731 ; 33 W. R. 595— Ghitty, J. Calcnlatlon of Time for Begistration of Bill of Sale — Sundays.] — A bill of sale through inad- "vertence not being registered within the time limited by the Bills of Sale Act, 1879, leave was given on the ex parte application of the grantee to register within three days, and the bill of sale was registered on the fourth day from the order, reckoning an intervening Sunday : — Held, that Sunday was not to be counted in the three days limited by the order for registration, and that therefore the registration had been effected within the time prescribed by that order. Parhe, In re, 13 L. R., Ir. 85— Miller, J. "Within Three Months."]— ,See Foster, jiarte, Hanson, In re, ante, col. 101. Ex TITHES. See ECCLESIASTICAL LAW. Subject to Annuity— Settled Land Act.]- JSgdaile, In re, ante, col. 1635. -See TITLE. Title of Dignity or Honour — Incorporeal hereditament.] — When a dignity is limited to the heirs of the body, then, although no place be named in the creation of the title, the dignity is within the statute De Donis, and descendible as ^n estate tail, and the patent does not create a fee simple conditional. There is no difference in these respects between a baronetcy and other descendible dignities. Rivett-Carnac's Will, In rre, 30 Ch. D. 136 ; 54 L. J., Ch. 1074 ; 53 L. T. •81 ; 33 W. K. 837— Chltty, J. ' Right of Entry^" Pretenoed " Title to Land — Buying of— Forfeiture — Knowledge of Buyer.] — In an action for a forfeiture under 32 Hen. 8, c. 9, s. 2, against the buyer of a right of entry, since 8 & 9 Vict. c. lOfi, s. 6, the oniis is upon the plaintiff to prove not only that the title pur- chased was bad, but also that the buyer knew that it was " pretenoed," i.e., fictitious, or bad in fact. The mere fact that the right purchased was barred by the Statute of Limitations at the time of the purchase does not necessarily rendjr the title " pretenced " within the menning of the 32 Hen. 8, c. 9. KenTiedy v. Lyell, 15 Q. B. D. 491 ; :,H L. T. 466 ; 1 C. & E. 584-Denman, J. TITLE-DEEDS. See DEED AND BOND, IV. 1. TOLLS. Charge of, for Carriage,]— See Carrier. Market Tolls.] — See Market. Liability of Postmaster-General to pay.]^5«« Post Office. Import Dues — Grain imported for Sale.] — The importation of an article for the purpose of its manufacture or conversion into a form other than that in which it is imported, is not an importa- tion of such article for sale, notwithstanding that it may at the time of importation be intended for sale when manufactured or converted. Where, therefore, a local act rendered grain brought into a port for sale liable to duty, such duty was heUl not to be leviable upon grain imported by a miller for the purposes of his business. Svatt v. Taylor, 48 J. P..424— D. TORTS. Si-e NEGLIGENCE— TRESPASS- TROVER, ETC. TOWAGE. See SHIPPING, XIIL TOWN. See HEALTH— METROPOLIS. COUnjil.]— &'C COKPOUATION. 3 N 1827 TEADE AND TKADE MARK— Trade. 1828 TOWING PATH. See WATEE (CANAL COMPANY). TRADE AND TRADE MARK. I Trapti 1. Trade JVaw;, 1827. 2. Imitation of Goods, 1830. 3. Trade lAlels— Slander of Title, 1831. 4. Conspiracy to Injure, 1834. 5. Contracts in Restraint of— See CoN- TBACT, III. 3, g. II, Tkade Maeks. 1. Registration. a. Who may Register, 1834. J. What may be Registered. i. Generally, 1836. ii. Fancy Words — Words not in Comihon Use, 1838. iii. Distinctive Device, Word, Mark, &c., 1840. iv. Similarity — Calculated to Deceive, 1843. Y. Three Mark Rule, 1846. vi. Words Publici Juris, 1847. e. Practice. i. Generally, 1847. ii. Rectification of Register, 1850. iii. Common Elements — Dis- claimer, 1854, 2, Infringement, 1855. III. Meechandize Maeks, 1858. IV, Designs, 1858. T. Teade Unions, 1860. I. TRADE. 1, TRADE NAME. Insurance Companies — Similarity — Injunc- tion.] — The plaintifE company having for many years carried on an insurance business under its name as stated below, the defendant company obtained registration, and began to issue pro- spectuses and advertisements under the name stated below. The offices of both companies were situated in the city of Loudon. On motion of the plaintifE company, an injunction was granted to restrain the defendant company, until the hearing or further order, from using its name as stated below, or any other name calculated to cause the defendant company to be mistaken for the plaintifE company. Aeci- dent Inmrance Company v. Accident, Disease, and General Insurance Corporation, 54 L. J., Ch. 1U4 ; 51 L. T. 597— Pearson, J. Newspaper — Grounds on which Publication restrained.]— The right of the proprietor of a newspaper to prevent another person from adopting the same or similar name for a similar publication, is not founded on the right of pro- perty in the proprietor, but rests upon the equit- able doctrine that the user of such name is reasonably calculated to induce the public to believe that the new paper is that of the original proprietor, and to pass ofE his paper for that of the original proprietor. Walter v. Mnmott, infra. Where the owner of a publication claims an injunction to restrain the issue of another publi- cation with a similar name he must show not only that the assumption of the name by the defendant is calculated to deceive the public, but also that there is a probability of the plaintifE being injured by such deception. Borthwicli V. Evening Post. 37 Ch. D. 449 ; 57 L. J., Q. B. 406 ; 58 L. T. 252 ; 36 W. R. 434— C. A. The plaintifE had long been the proprietor of a daily morning newspaper, called the " Morning Post." The defendants commenced a daily evening newspaper called the " Evening Post." There was no evidence of any actual injury having been done to the plaintiff by the conduct of the defendants :— Held, that although the conduct of the defendants m taking the name " Evening Post " might be calculated to deceive- the public into supposing that there was a con- nexion between the two papers, there was no probability that the plaintiff would be injured by such supposition ; and an injunction was therefore refused. Ii. Misrepresentation — Interlocutory Injunc- tion.] — The proprietor of an old-established paper called " The Mail," published three days a week at 11 a.m. at the price of 2d. in London, but whose principal circulation was in the provinces and abroad, was held not entitled, upon inter- locutory application, to an injunction restraining the defendant from using on a daily morning paper which he had just started, and which was published in London at 3 a.mi at the price of \d.y the title of " The Morning Mail." Walter v. Emmott, 54 L, J., Ch. 1059 ; 53 L. T. 437— C. A. Registration of Copyright — User and Reputa- tion.]— The plaintiffs, on the 3rd February, 1888, published the first number of a newspaper, and registered it at Stationers' Hall on the next day. No advertisement had been issued that a newspaper under that name was about to be - published. On the 6th Februarj' the defendants published the first number of a newspaper with the same name. Very few copies of the plain- tiffs' paper had then been sold : — Held, that the plaintiffs could not restrain the defendants from publishing their newspaper under that name, for that the registration at Stationers' Hall gave the plaintiffs no exclusive right to the name, and that a title to it by user and reputation could not be acquired by a publication for three days with a very small sale. Liceiised Victuallers' News- paper Company v. Bingliam, 38 Ch. D. 139 ; 58 L. J., Ch. 36 ; 59 L. T. 187 ; 36 W. E. 433— C. A. The plaintiff was the proprietor of a news- paper called " The Grocer," published in London, to which there had been originally attached a monthly supplement entitled " The Oil Trade Re- view,"bothof which were registered at Stationers' Hall. In 1886 the two were amalgamated under the name of " The Grocer and Oil Trade Review," 1829 TEADE AND TEADE MABK— Trade. 1830 In 1888 the defendants commenced, in Dublin, the publication of a bi-monthly paper called " The Grocer and Wine Merchant and Irish Brewer and Distiller," intended by the defendants to represent and to advocate the interests of a different branch of the trade from the plaintiff's paper: — Held, that the plaintiff was entitled to an injunction to restrain the defendants from using the term " Grocer "as the firet or principal pari of the title of their paper. Reed v. O'Meara, 21 L. R., Ir. 216— V. C. Assuming Name — Telegraphic Address.] — The short address " Street, London," was used for many years in sending telegrams from abroad to Street & Co., of Cornhill. A. bank adopted by arrangement with the Post OiBoe the phrase " Street, London," as a cypher address for telegrams from abroad to themselves ; — Held, that the court had no jurisdiction to restrain the bank from using such cypher address. Street v. Union Sanli of Spain and England, 30 Ch. D. 156 ; 55 L. J., Ch. 31 ; 53 L. T. 262 ; 33 W. E. 901— Pearson, J. " Castle Album " of Photographs.]^An album for holding photographs containing a printed list of various castles, painted illustrations of which, with short descriptions, appeared on the pages of the album, is not a book within the Copyright Act, 1842. Even if the album were a book, there was no infringement of copyright in taking as a title the words "Castle Album," which had not on the evidence been proved to have acquired a secondary sense in the market designating the plaintiff's album exclusively so as to fall within the principle of Wotherspoon v. Oarrie (a L. R.,H.L. 508). Schove v. Sehminelie, 33 Ch. D. 546; 55 L. J., Ch. 892 ; 55 L. T. 212 ; 34W. E. 700— Chitty, J. Exclusive Use of another Person's ITame.] — F. sought to restrain C. and V. from using the name " Eichter Concerts," or from representing themselves as owners of the undertaking known by that name, or from representing that they were carrying on tie " Eichter Concerts " in succession to F.'s series ; and also to restrain V. from acting in the matter as agent for C. F. alleged that he engaged Dr. Eichter to conduct concerts, and in 1879 had originated the " Eichter Concerts " ; and that no concerts had ever been given under that name excepting by him. It appeared that C. had announced a series of " Eichter Concerts," and that V., notwithstanding a written agreement to act as F.'s agent, had held himself out as the agent of C. It was contended by F. that he had acquired the right to the ex- clusive use of the term " Eichter Concerts," as a " trade name," by having originally introduced the name and obtained a list of subscribers, and by the introduction of original features asto price and music. Dr. Eichter had declined to act any longer as the conductor of F.'s concerts, and had made arrangements with C. : — Held, that it re- quired a strong case to be made out to sustain a claim to the exclusive use of another person's name as a trade name, that no such case had been established in the present instance, and that there was no ground for saying that the term " Eichter Concerts " had become dis- sociated from Dr. Eichter himself, who was at liberty to cany his services to any market he chose. Franhe v. Cliappell, 57 L. T. 141 — Chitty, J. Label on Champagne Bottles — Hisrepreseuta- tion— Long User.]— In July, 1885, M., of Dizy, in France, commenced the consignment to the plaintiff in London of champagne under the label "Le Court et Cie., Eeims," which had then recently been registered in France as his trade-mark, and to which in December, 1886, his right was established in proceedings against X. before the French tribunal. Further con- signments were made to the plaintiff down to July, 1886, and advertised and sold by him as Le Court et Cie.'s champagne. In March, 1886, the defendant, trading under the name of Short & Co., began to sell (chiefly at a wine bar across the counter) champagne which was sent to him from France by X. as Le Court et Cie.'s cham- pagne ; and it appeared that in 1882 he had proposed to register in France a label with the name Le Court et Cie. as corresponding to his own trade-name of Short & Co., but from diflSculties in obtaining registration abandoned the idea. Upon motion by the plaintiff to restrain the use of the name and brand by the defendant : — Held, that the plaintiflE was not entitled to an injunction against the defendant : because the evidence failed to show that either by long user or reputation had the wine sold under the name and brand " Le Court et Cie." become so associated with the wine of the plain- tiff as to enable him to assert his common law right of restraining another person from passing ofi his goods as those of the plaintiff. Good- fellow V. Prince, 35 Ch. D. 9 ; 56 L. J., Ch. 545 ; 56 L. T. 617 ; 35 W. E. 488— C. A. Bight of User on Sale of Goodwill.] — See Goodwill. 2 IMITATION OF GOODS. Fuhlic not Betail Dealers deceived — ^Bight to Injunction — Form of Account.] — The defendants, who were soap manufacturers, brought out their soap in packets so closely resembling those in which the plaintiffs, who were also soap manufacturers, had been iij the habit of bringing out their soap, as to be calcu- lated to deceive purchasers : — Held, that, al- though the retail dealers who bought soap from the defendants would not be deceived, the defendants, by their imitation of the plaintiffs' packets put into the hands of the retail dealers an instrument of fraud, and ought to be restrained by injunction. An injunction wap accordingly granted, and an account wis directed of the profits made by the defendants in selling soap in the form in which it was held that they were not entitled to sell it ; and on an apipeal the court held that the injunction had been rightly granted, and that the account was in the proper form, and ought not to be limited by excluding from it' soap which the retail dealers sold to persons who bought it as the defendants' soap. Lever v. Goodwin, 36 Ch. D. 1 ; 57 L. T. 583 ; 36 W.' E. 177— C. A. "Guaranteed Corset" — Exclusive User.] — A firm of corset manufacturers had for upwards of four years been the exclusive makers and sellers of ateorset wiich they called the " Gnaran 3 N 2 1831 TRADE AND TRADE MAUK— Trade. 1832 teed Corset," the wear of which they guaranteed for twelve months by undertaking to supply any purchaser with a new corset in case of complaint within that period. The corset was sold in a box bearing a printed label with the words " Guaran- teed Corset" in large and conspicuous type, and in smaller type the words, " This corset is guaranteed to wear twelve months." The defendants, a rival firm of cornet manufacturers, subsequently introduced a cheaper and inferior corset, the wear of which they also professed to guarantee for twelve months, and which they sold in a box bearing a printed label with the words " Guaranteed Corset " in large type, and words in smaller type similar to the plaintiffs' : — Held, in an action by the plaintiffs for an injunction, that the word " guaranteed " was not so distinctively and exclusively applicable to the plaintiffs' corset as that the court would re- strain the defendants from using the same word in connexion with their corset. Symington v. Footman, 56 L. T. 696— Kay, J. See Goodfellow v. Prince, supra. Colourable Iinitation.]^W. registered the word " Keversi " as a trade-mark f or " a game somewhat analogous to draughts." The word was the name of a game of cards popular in France in the 16th century. In the rules of W.'s game the word "reverse" frequently occurred, and the game depended on each player reversing or turning over his adversary's counters. A. brought out a similar game under the name " Annex," and on the labels of the boxes in which he sold it, he added to the name "a game of reverses." W. brought an action to restrain A. from using the word " reverses" : — Held, that the use of the words " a game of reverses," which were a fair description of the nature of the game, did not shew any design on the part of A. to pass off his game as that of W., and that an injunction ought not to be granted. Waterman v. Ayres, Water- man's Trade-mark, In re, 39 Ch. D. 29 ; 57 L. J., Ch. 893 ; 59 L. T. 17 ; 37 W. R. 110— C. A. Ezclaslye Bight to Use apart from Legis- lation.] — In the absence of any legislation for the registration of trade-marks, as soon as a trade- mark has been so employed in the market as to indicate to purchasers that the goods to which it is attached are the manufacture of a particular firm, it becomes to that extent the exclusive property of that firm, and no one else has a right to copy it, or even to appropriate any part of it, if by such appropriation purchasers may be in- duced to believe that they are getting goods which were made by the firm to which the trade- mark belongs. But the acquisition of such ex- clusive right to a mark or name in connexion with a particular article of commerce cannot entitle the owner of that right to prohibit the use by others of such mark or name in connexion with goods of a totally different character. Somerville v. Soliembri, 12 App. Gas. 453 ; 56 L. J., P. C. 61 ; 56 L. T. 451— P. 0. 3. TRADE LIBELS— SLANDER OF TITLE. Wiappar — Descriptive Title — Injunction.] — It haci been established liy litigation between the L. Company and A. that(l) the words "Liebig's Extract of Maat" is a merely ^esqriptive title open to all the public ; (2) that it is equally open to the public to sell the article as '■ Baron Liebig s Extract of Meat ;" or (3), to use a photograph of Baron Justus Von Liebig, the inventor of the receipt. A. then proceeded to use in connexion with the extract of meat sold by him, a wrapper with a photograph of Baron Liebig, and a state- ment " this is the only genuine brand," with a reference to the "favourable decision" of t.hc House of Lords and the judgments of the various judges who had given judgment in the litigation which had been carried to the House of Lonls. The L. Company moved to restrain A. from using the wrapper in question : — Held, that the com- pany, who were not carrying on a fraudulent trade, were entitled to an injunction, notwithstanding that they might in their own advertisements have to some extent gone beyond what they were entitled to say. Lir.Wg'g Ertraet of Meat Com- pany V. Anderson, 55 L. T. 206— Chitty, J. Circular 'Waming against Infringement of Patent — Balance of Convenience.] — The defen- dants, who were the owners of patents in Belgium and England for an invention for making glass lamp globes, by a deed executed in Belgium, granted a licence to the plaintiffs to manufacture articles under their invention in Belgium, bat not elsewhere. The deed contained a clause for submitting disputes to arbitration. The plaintiffs under this licence manufacturei articles in Belgium and sold them in England. The defen- dants issued a circular warning persons engaged in the trade that the importation and sale of articles made in foreign countries under their invention, except by themselves, would be a violation of their patent. The plaintiffs brought an action to restrain the issue of this circular until the matters in dispute had been determined by arbitration : — Held, that where ■-■ trade cir- cular is issued Ijona. fide, an interim injunction will not be grantel to restrain it unless it is in violation of some contract between the plaintiff iind defendant, however much the balance of convenience may be in favour of granting it. Siciete Anonyme des Maniifactures de Glacen V. Tilghman's Patent Sand Blast Company, 25 Ch. D. 1 ; 53 L. J., Ch. 1 ; 49 L. T. 451 ; 32 W. 11. 71 ; 48 J. P. 68— C. A. The plaintiffs were the makers of " rainbow water raisers or elevators," and they commenced an action for an injunction to restrain the defen- dants from issuing a circular cautioning the public against the use of such elevators as being direct irtf ringements of certain patents of the defendants. The plaintife subsequently gave- notice of a motion to restrain the issue of this circular until the trial of the action. The de- fendants then commenced a cross action, claim- ing an injunction to restrain the plaintiffs from infringing their patents : — Held, that as there was no evidence of mala fides on the part of the defendants, they ought not to be restrained from issuing the circular until their action had been disposed of ; but that they must undertake to prosecute their action without delay. House- hold V. Fairbnrn, 51 L. T. 498— Kay, J. The defendants issued a circular to their customers stating that they were unable t() supply a particular electric bell (for which the plaintiff had obtained protection) asit had ■■ been proved to be an infringement" of anoiher patented bell. Up to date of issue of the cii-cular no action or proceeding had been commenced 1833 TRADE AND TRADE MXRK-Trade Marks. 1834 by any one agaiast the plaintiff in respect of his liell. Au action was afterwards commenced, and then abandoned : — Held, that as the alleged infringement had not been proved by any proper proceeding before the court, there was no reasonable and probable cause for the statement in the circular, and the plaintiff was entitled to damages. Orampton v. Sioetc, 58 L. T. 516 — Kekewich, J. Circalar — Privilege — Malice — Erroneous Statement of Judgment in former Action — Damages.] — The plaintiff, who traded as R. H. & Co.", and the defendants, who traded as E. H. & Sons, were rival manufacturers of sail-cloth. The plaintiff had formerly been a partner in the defendant's firm. In 1885 the defendants brought an action against the plaintiff, claiming (inter alia) an injunction to restrain him from re- presenting his firm to be the original firm of R. H. & Sons. At the trial of the action. North, J., dismissed it, without costs as to that issue, and with costs as to the other issues. North. J., was satisfied by the evidence that the then defendant had never made any such repre- sentation, but that on two or three occasions one of his agents without his knowledge or concur- rence had represented that the then defendant's firm was the original firm. The then defendant repudiated this as soon as he knew it, and at the trial he offered by his counsel to give an under- taking that he would never make such a repre- sentation. North, J., desired that this under- taking should be inserted in the judgment ; the defendant assented, and it was accordingly in- sorted in the judgment drawn up by the registrar. In 1886 the present defendants distributed a printed circular, which stated that they were the original firm, and after giving the title of the former action, headed by the word "Caution," proceeded : " By the judgment the defendant was ordered to undertake not torepiesentthat his firm is, or that the plaintiffs' firm is not the original firm of R. H. & Sons. Messrs. E. H. & Sons, finding that serious misrepresentations were in circula- tion to their prejudice, felt themselves compelled to bring the above action " : — Held, that the circular contained an untrue statement of the effect of the judgment in the former action ; that it was a libel injurious to the plaintiff's trade ; that it was not privileged ; that the de- fendants had published it maliciously ; and that the plaintiff was entitled to an injunction, with the costs of the action. But there being no evi- dence of damage to the plaintiff, except his own affidavit that the publication of the circular was calculated to injure him, and had injured him, in his business, which he said had greatly fallen off since the issue of it ; and the plaintiff not having brought the action until three months after he knew of the publication of the circular, only bl. damages were awarded to him. liayward I; Co. V. Hayward ^ Sons, 34 Ch. D. 198 ; 56 L. J., Ch. 287 ; 55 L. T. 729 ; 35 W. E. 392— North, J. Actions not abating by Death of Party.]— An action for defamation, either of private character or of a person in relation to his trade, comes to end on the death of the plaintiff, but an action for the publication of a false and malicious statement, causing damage to the plaintiff's personal estate, survives : — — Held, therefore, that a claim for falsely and maliciously publishing a statement calculated to injure the plaintiff's right of property in a trade-mark was put an end to by the death of the plaintiff after the commencement of the action only so far as it was a claim for libel, but that so far as the claim was in the nature of slander of title the action survived, and could be continued by his personal representative, who would be en- titled to recover on proof of special damage. Ilatokardy. Mkge, 18 Q. B. D. 771 ; 56 L. J., Q. B. 397 ; 56 L. T. 662 ; 35 W. K. 576 ; 51 J. P. 277—1). Injunction to restrain.] — See Defamation, 1.4. i. CONSPIRACY TO INJURE. Combination to keep down Freights — Bival Ship- owners—Whether Actionable.] — The plaintiffs complained that the defendants unlawfully con- trived and conspired to prevent the plaintiffs carrying on their trade by forming themselves into a conference offering a rebate of 5 per cent, upon all freights paid by those shippers who shipped their cargoes on board conference vessels alone, to the exclusion of the plaintiffs' vessels : — Held, that the combination was not unlawful, and that the defendants were not guilty of a misdemeanour ; that the acts done in pursuance of the combination were not unlawful, wrongful, malicious, nor in restraint of trade. The bargain was one the defendants had a right to make, and they were entitled to judgment. Mogul Steamship Cuvtpany v. McGregor, 21 Q. B. D. 544 ; 57 L. J.. Q. B. 541 ; 59 L. T. 514 ; 37 W. R. 286 ; 53 J. P. 391 ; 6 Asp. M. C. 320— Coleridge, C. J. Affirmed 37 W. E. 756— C. A. Interlocutory Injunction.] — A confedera- tion or conspiracy by an associated body of shipowners which is calculated to have, and has, the effect of driving the ships of other merchants or owners, and those of the plaintiffs in par- ticular, out of a certain line of trade, — even though the immediate and avowed object be not to injure the plaintiffs, but to secure to the con- spirators themselves a monopoly of the carrying trade between certain foreign ports and this country, is, or may be, an indictable offence, and therefore actionable, if private and particular damage can be shown. To warrant the court, however, in granting an interim or interlocutory injunction to restrain the parties from con- tinuing to pursue the objectionable course, those who complain must at least show that they have sustained or will sustain " irreparable damage," — that is, damage for which they cannot obtain adequate compensation without the special in- terference of the court. Mogul Steamship Company v. M' Gregor. 15 Q. B. 1). 476 ; 54 L. J., Q. B. 540 ; 53 L. T. 268 ; 49 J. P. 646 ; 5 Asp. M. C. 467 ; 15 Cox, C. C. 740— D. 5. CONTEACTS IN EESTEAINT OF.- *e CONTEACT, III. 3, g. II. TBADS UABES. 1. EEGISTRATION. a. Who may Register. Applicant carrying on Business Abroad.]— Whether in order to entitle a person to have a 1835 TEADE AND TKADE MARK— Trade Marks. 1836 trade-maric registered, he must te carrying on or intending to carry on business in England, quaere. Miviire's Trade-marh, In re, 26 Ch. D. 48 ; 53 L. J., Ch. 578 ; 50 L. T. 763 ; 32 W. E. 390— C. A. Joint Mark — Termination of Joint Adventure — Application by One Party.] — E. J., a merchant in Manchester, for some time prior to the passing of the Trade-marks Act, 1875, shipped cotton drills to A. & Co., a firm at Manilla, for sale on commission, the goods, in common with other goods sold by A. & Co. for other people, bear- ing a trade-mark representing the figure of Britannia, which mark was the property of A. & Co. After the passing of the act, doubts having arisen as to the propriety of using the Britannia mark, E. J. wrote to A. & Co., suggest- ing the use of a new design ; and they sent back a proposed trade-mark which represented the house of business at Manilla of A. & Co., with their name on the signboard. Beneath were three columns in Chinese characters. The first represented " E. J., Manchester," the second contained the crest of K. (the Manilla partner of A. & Co.), with words indicating that it was his " chop " or mark, and the third represented " A. & Co., Manilla." On the construction of the letters between the parties, the court held that there was no contract that the mark should be the property of E. J. : — Held, that E. J., after the termination of the joint adventure, was not entitled to register the trade-mark in his name, and, semble, that if there had been such a con- tract, it could not have been enforced, as the trade-mark, if registered as the property of B. J., would have been calculated to deceive the public. Jones's Trade-marlt, In re, 53 L. T. 1 — C. A. Assignees — Goodwill — Eectification.] — M. and. E., carrying on business as co-partners in New York, instructed their agents in this country, B. and W., to register two trade-marks for goods of theirs, of which B. and W. had the exclusive sale. Such trade-marks were registered by B. and W. as to one in the name of their firm, and as to the other in the name of W. only. B. and W., having no beneficial ownership in the trade-marks, in August, 1884, assigned them to M. and E. In December, 1884, one of the partners in the firm of M. and E. retired, and by deed assigned all his interest in the business of the firm and in the trade-marks to the continuing partners. In De- cember, 1885, another partner retired, and three new partners joined the firm, but no assignment was executed by the retiring partner. On a motion by the present partners in the firm of M. and E., and the last retiring partner, under s. 78 of the Patents, Designs, and Trade-marks Act, 1883, that proper notices of the assignments of August, 1884, and December, 1884, might be en- tered on the register, and that the persons entitled under the last-mentioned assignment might be entered as the present proprietors of the trade- marks : — Held, that the application might be granted, as the trade-marks had been trans- mitted in connexion with the goodwill of the business of M. and E. within the meaning of s. 70 of the act. Wellcoms'a Trade-marli, In re, 32 Ch. D. 213 ; 55 L. J., Ch. 542 ; 54 L. T. 493 ; 34 W. E. 453— Chitty, J. b. Wiat may be registered. i. Generally. Entire Class— User for part of Class— Exclu- sive Title for Entire Class.]- An assignee of the goodwill of a business with the right to a trade- mark which has been registered by the assignor under the Trade-marks Eegistratiou Act, 1875, in respect of an entire class, but of which the articles dealt with in such business form part only, is not entitled to the exclusive user of the trade-mark for the entire class, but only for the particular articles in connexion with which it is actually used, even though the trade-mark may have been on the register for five years. Edwards V. Dennis, Edwards' Trade-marh, In re, 30 Ch. D. 454 ; 55 L. J., Ch. 125 ; 54 L. T. 112-C. A. Ee- versing 1 C. & E. 428 —A. L. Smith, J. Semble, it is not the intention of the act that a man registering a, trade-mark for an entire class, and yet only using it for one description of goods in that class, shall be able to claim for himself the exclusive right to use it for every description of goods in that class. If he desires to extend his business and apply his trade-mark to a new description of goods in the class, he should have his trade-mark registered in respect of those goods. Qusre, whether a man can claim the exclusive use of a registered trade-mark not in actual use in connexion with particular goods at the time of registration. li. In 1883 E. purchased and took an assignment of the goodwill of the business of an iron mer- chant and manufacturer, and also of the right to a trade-mark, consisting of a device of " Nep- tune " holding a trident, with the word " Nep- tune " added, which had been registered by the assignor in 1878, under the Trade-marks Eegis- tratiou Acts, 1875 and 1876, for the whole of Class 5, described in the " Trade-marks Journal " as " unwrought and partly wrought metals used in manufacture," E. duly getting himself regis- tered as proprietor of the trade-mark. The only business actually carried on by E. and his as- signor was and had been that of a manufacturer of iron sheets. In 1880 D. registered a, trade- mark bearing the word " Neptune " for " steel wire and iron wire " in Class 5, his business consisting solely of the manufacture and sale of wire. In 1884 E. brought an action against D. for infringement, on the ground of the alleged similarity of D.'s trade-mark. D. then applied by summons under s. 5 of the act of 1875, to have the register rectified by limiting E.'s trade- mark to the articles in Class 5 other than steel and iron wire : — Held, that inasmuch as the goods sold by E. and D. were entirely distinct, E. was not entitled to an injunction : — Held, also, that, notwithstanding the five years' regis- tration of E.'s trade-mark for the whole of Class 5, his trade-mark must be limited to those articles in the class in connexion with which it was being actually used, namely, iron sheets. li. Sufgciency of User.]— C. & Co. in 1876 regis- tered as a trade-mark the words " Excelsior Spring Mattress." In 1883 they commenced an action in the Palatine Court of the Duchy of Lancaster against B. to restrain him from using their trade-mark " Excelsior." B. moved to remove the trade-mark from the register on the ground that the word " Excelsior "had not been used as a trade-mark before the passing of the 1837 TEADE AND TEADE MABK— Trade Marks. 1838 act of 1875. It appeared that the word had been used on bills and notices, but always applying to a mattress made under a patent of B.'s predecessors in. business which expired in 1883 ; that it had been used in combination ivith a device of a man and a banner on metal ■plates which were affixed to the mattresses ; that an indiarubber stamp containing tlie words alone had been made, and was usually impressed upon the side of the mattress, and that a photo- graph was constantly used in selling the goods which showed the mattress with a label attached, having on it only the words " Excelsior Spring Mattress " : — Held, that there had been sufficient iiser as a trade-mark and the mark was rightly put on the register. Chorlton's Trade-mwrh, In re, 53 L. T. 337 ; 34 W. E. 60— Pearson, J. "Where il appeared that the customers of a firm of H. & Co. had for many years been accus- tomed to ask for a certain article by the name of " Coker Canvas," but it did not appear that the words " H.'s Coker Canvas " had been stamped upon any of the goods of the firm or advertised as a trade-mark : — Held, that there had been no use by the firm of the words "H.'s Coker Canvas" as a trade-mark. IlaywarcVs Tradc-marJi, III re, 54 L. J., Ch. 1003 ; .IS L. T. 487— Kay, J. Words descriptive of Patented Article — User liefore 1875. ] — P. in 1876 registered ' ' braided fixed stars" as a trade-mark for matches, alleging that he had used it as a trade-mark before the passing of the act of 1875. He also at the same time registered a label enveloping the boxes in which his matches were sold, which contained the words " braided fixed stars " in two places so as to be •conspicuous on each side of the boxes, but also contained a number of other words. It was shown that at the time when P. introduced the term "braided fixed stars "the term "fixed stars" was known in the trade as denoting a particular ■class of fusees, and that he had just bought a patent for enveloping the stems of fusees with wire by means of a braiding machine. This patent expired in August, 1881. It appeared from the evidence that P. had not before the act used " braided fixed stars" separately as a trade-mark, or otherwise than as a part of the above- mentioned label. In October, 1881, an applica- tion was made by a rival trader to expunge the registration : — Held, that the registration must be expunged, for that to entitle P. to register -these words as a trade-mark he must before the .act have used them as such alone, and not merely in conjunction with otherwords. Palmer's Trade- mark, In re, 24 Ch. D. 504 ; 50 L. T. 30 ; 32 W. E. 306— C. A. Tlser of Word in Foreign Country.] — Whether a word used alone as a trade-mark in a foreign ■country before the passing of the Trade Marks Act, 1875, can be registered under the act if it has not been so used in this country, qusere. Leonard v. Wells, Leonard's Trade-mark, In re, 26 Ch. D. 288 ; 53 L. J., Ch. 603 ; 51 L. T. 35— <€. A. Affirming 32 W. E. 530— Pearson, J. Fraudulent User of Foreign Trade-mark.] — In 1718 G.'s firm, who were manufacturers of iron at Leufsta,in Sweden, registered in Sweden, as their trade-mark, the letter L. inclosed in a ring or hoop, commonly known as the " hoop L." In 1878 they registered in England, under the Trade Marks Eegistration Act, 1875, the hoop L. mark alone, and also in combination with the word " Leufsta." Since 1835 they had exported iron of the highest quality to England for the manufacture of a particular kind of steel known as " blister steel." The hoop L. mark was stamped upon the iron in combination either with the name of their English consignee, or with the word " Leufsta," or with both. They registered these in Sweden as bye-stamps in addition to their original hoop L. mark. H.'s firm, who were English iron and steel and edge tool manufacturers, had for fifty years past used the hoop L. mark, in combination with the name of their firm, as their trade mark upon blister steel manufactured by them from inferior brands of Swedish iron. For this purpose it was neces- sary to cut off the Swedish mark, as the bars of iron when converted into steel retained upon their surface, unless intentionally obliterated, any marks which might be stamped upon them. A similar practice was adopted by thirty other English firms of iron and steel manufacturers, but this practice did not come to G.'s knowledge until 1881. H. applied, under the Trade Marks Eegistration Act, 1875, to register the hoop L. mark in combination with the words " Brades Co., Warranted :" — Held, that the application must be refused, with costs, upon the ground that, whatever might have been the practice as to the user, it was one which had its inception in fraud, and was calculated to deceive, and therefore, though apparently established by time and usage, could not receive the sanction of the court. Ileatoii's Trade-mark, In re, 27 Ch. D. 570 ; 53 L. J., Ch. 959 ; 51 L. T. 220 ; 32 W. E. 951— Kay, J. ii. Fancy Words — Words not in Common Use. Name for New Article.] — A name which has been given to a new article, and which is the only name by which it is known, cannot be a " fancy word " as regards that article. Water- man T. Ayrcs, Waterman's Trade-rrmrh, In re, infra — Per Fry, L. J. Descriptive of Pattern — "Gem."] — Where a name or word was originally, or has come to be, descriptive of the article to which it is applied, so that while indicating what the article is, it does not connect it with any par- ticular manufacturer, such name or word cannot be registered as a trade-mark. Accordingly, where at the time of an application made in 1884 for the registration of the word " gem " as a trade- mark for air-guns which in 1881 had been newly introduced into England and called " Gem " air- guns by the applicant, the word " gem " had be- come descriptive of a particular pattern of gun, and not merely of the applicant's gun, it was held that the word could not be registered as the applicant's trade-mark for air-guns. The word " gem " having now come to indicate the excellence of the article to which it is applied is not now a " fancy word " within the meaning of the Patents, Designs, and Trade Marks Act, 1883, s. 64, sub-8. 1 (c). Arhonz. In re, " Gem " Trade-mark, In re, 35 Ch. D. 248 ; 56 L. J., Ch. 524 ; 56 L. T. 252 ; 35 W. E. 527— C. A. " Sanitas."]— " Sanitas " is not a " fancy word not in common use " within the meaning of sub-B. 1 (c) of s. 64 of the Patents, Designs, and 1839 TEADE AND TEADE MAllK— Trade Marks. 1840 Trade Marks Act, 1883, and cannot therefore be reoristered. " Sauitas " Trade-marh, In re, 58 L. T. 166— Kay, J. " Eed, White and Blue."] — An application to proceed with the registration of the words " Eed, White, and Blue," as " fancy words not in com- mon use" within the meaning of s. 64 of the Patents, Designs, and Trade Marks Act, 1883, was refused. Hanson's Trade-marh, In re, 37 Oh. D. 112 ; .'57 L. J., Ch. 173 ; 57 L. T. 859 ; 36 W. E. 184— Kay, J. "Eeyersi."] — W. registered the word " Ee- Versi " as a trade-mark for " a game somewhat analogous to draughts." The word was the name of a game of cards popular in France in the 16th century. In the rules of W.'s game the word " reverse " frequently occurred, and the game depended on each player reversing or turning over his adversary's counters. A. brought out a similar game under the name " Annex," and on the labels of the boxes in which he sold it. he added to the name " a game of reverses." W. brought an action to restrain A. from infringing the trade-mark, and A. applied to remove the trade-mark from the register : — Held, that as the woid " Eeversi " would suggest to an ordinary Englishman the idea that the game had something to do with reversing, it was not a word which obviously could not have any reference to the character of the article. Van Duzer's Trade-marli, In re (34 Ch. D. 623, 639) ; that it therefore was not a " fancy word," and ought to be removed from the register. Waterman v, Ayres, Waterman's Trade-marli, In re. 39 Ch. D. 29 ; 57 L. J., Ch. 893 ; 59 L. T. 17; 37W. E. 110— C. A. " Hand Grenade Fire Extingmsher."] — The Words "Hand Grenade Fire JExtinguisher " are not capable of registration as fancy words under the Patents, &c., Act, 1883, s. 64, as a trade-mark for an instrument consisting of a glass vessel con- taining a fire-extinguishing fluid intended to be liberated by means of the vessel being broken when thrown by the hand. Harden Star Hand Grenade Company, In re, 55 L. J., Ch. 596 ; 54 L. T. 834— Chitty, J. " Melrose "—" Electric."]— The fanciful or abnormal use of a word not in itself obviously non-descriptive, does not make it a "fancy word " within the Patents, Designs, and Trade Marks Act, 1883, s. 64, sub-s. 1 (o), so as to be capable of registration as a trade-mark. Accord- ingly applications for a direction to the Comp- troller-General to proceed with the registration as trade-marks of the words " Melrose Favourite Hair Eestorer " and " Electric Velveteen," were, in both cases, refused. Trade-marh Alpine, In re (29 Ch. D. 877) questioned. Van Ditzer's Trade-marli, In re ; Leafs Trade-marli, In re, 34 Ch. D. 623 ; 56 L. J., Ch. 370 ; 56 L. T. 286 ; 35 W. E. 294— C. A. " Jubilee."] — The word " Jubilee " is not ob- ■viously meaningless as regards paper or note- paper, because it may signify that the paper is produced in the Jubilee year (1887) of Her Majesty's reign, and it is, moreover, a common English word used by well-known English authors. Consequently the word " jubilee " is not capable of registration as a trade-mark for paper, as a fancy word within s. 64 of th& Patents, Designs, and Trade Marks Act, 1883. Towgood V. Pirie, 56 L. T. 394 ; 35 W. R. 729— Chitty, J. " National Sperm."] — ^An application was made for an order upon the Comptroller of Trade-marks to register a mark having the words " Price's Patent Candle Company " in common, letters round the upper border and " National Sperm " in the centre, with the address of the company round the lower border : — Held, that the words " National Sperm " not being fancy words " not in common use," the label did not fulfil the requirements of the Patents, Designs^ and Trade-marks Act, 1883, s. 64. Pried » Patent Candle Company, In re, 27 Ch. D. 681 ; 54 L. J., Ch. 210 ; 51 L. T. 653— Pearson, J. "Alpine."]^The word "Alpine" and words; of such class, although words in common use and not strictly fancy words, may, when applied to. articles such as woollen and cotton goods, b& registered as a trade-mark, as they are, if not "fancy words," at least fanciful words when applied to such goods, and so fall within s. 64, sub-s. 1 (c), of the Patents, Designs, and Trade Marks Act, 1883 (46 & 47 Vict. c. 57). Trade-marli '-'Alpine" In re, 29 Ch. D. 877 ; 54 L. J., Ch. 727 ; 53 L. T. 79 ; 33 W. E. 72.5— Chitty, J. " Strathmore."] — The plaintiff, who was a wine and spirit merchant, registered a trade-mark together with the words " Strathmore Blend,"' which was the name of a certain blend of various whiskeys made and sold by him, and he adver- tised the same very ^\^dely. Many of the plain- tiff 's customers were in the habit of ordering- his whiskey by calling it " Strathmore whiskey,"' omitting the word " blend," and the whiskey became known in the market as '• Strathmore whiskey." The defendant subsequently regis- tered a trade-mark and the name of '• Strath- more " for a whiskey blended and sold by him. The question was whether the use of the word " Strathmore " by the defendant was calculated to deceive : — Held, that the word " blend " de- scribed simply the operation of manufacturing,, and was not an essential part of the name of th& plaintiff's whiskey; that the word "Strath- more " was a fancy name ; that the use of that word by any person, other than the plaintiff, as. a name for whiskey would be calculated to deceive ; and that the defendant must be re- strained by injunction from using the word either as part of his trade-mark or otherwise. Held, also, that it was not lawful for the defen- dant to register the word " Strathmore " in com- bination with his trade-mark, and that the register must be rectified by striking out the- word. Blair v. Stocli, 52 L. T. 123— Kay, J. iii. Distinctive Device, Word, Mark, eti'. Independently of Colonr.]— Under s. 67 of the Patents, Designs, and Trade Marks Act, 1883, a trade-mark may be registered in any colour or colours ; but, having regard to s. 64, it must be a trade-mark that is distinctive independentlr of colour. A trade-mark of which the only dis"- tinction is colour cannot be registered. Han- 1841 TRADE AND TRADE MARK- Trade Marks. 1842 3on\- Trade-marJi, In, re, 37 Ch. D. 112 ; 57 L. J., Oh. 173 ; 57 L. T. 859 ; 36 W. K. 134— Kay, J. In 1872 H., a wholesale grocer, commenced using, for French coffee, a, red, white and blue lube], and in 1881 he registered it under the Trade Marks Registration Act, 1875, in class 42, for " coffee " only. Ttie label as registered was shaded so as to represent three colours, across it being printed the woitls" lied. White and Blue." After the passing of the Patents, Designs, and Trade Marks Act, 1883, H. applied for the regis- tration of a red, white and blue label (in colours) for the whole of the goods in class 42, but the comptroller refused to register the label as not being sufficiently distinctive. On a motion by H. for an order on the comptroller to proceed with the registration ; — Held, that, having re- gard to ss. 64 and 67 of the act, the label was not capable of registration as it possessed no dis- tinctive character independently of the colours. Jb. " Special and Distinctive Words."] — A "special and distinctive word " used in the definition of a trade-mark in s. 10 of the Trade Marks Eegis- tration Act, 1875, means a word which distin- guishes the goods to which it is attached as goods made or sold by the owner of the mark ; and by using some additional words so as to induce the general public, as distinguished from persons in the secrets of the particular trade who would not be deceived, to believe that goods so marked are of foreign brand and manu- facture, the inventor of the original word is pre- cluded from saying that such word is distinctive of his own manufacture, so as to be capable of registration as his trademark. Wood's Trade- fnarJe, In re, Wood v. Lambert, 32 Ch. D. 247 ; 55 L. J., Ch. 377 ; 54 L. T. 314— C. A. And see Harbord, In re, infra. An application was made for an order upon the Comptroller of Trade-marks to register a mark having the words " Price's Patent Candle Company " in common lettera round the upper border and " National Sperm " in the centre, with the address of the company round the lower border : — Held, that the name of the firm printed in common letters not being distinctive, the label did not fulfil the requirements of the Patents, Designs, and Trade Marks Act, 1883, s. 64. Price's Patent Candle Company, In re, 27 Ch. D. 681 ; 54 L. J., Ch. 210 ; 51 L. T. 653— Pearson, J. "Distinctive Mark."]— In 1861 the plaintiffs registered a design for the shape of blocks of black lead, being a cylinder terminated by a dome at one end. From that time they sold black lead in boxes, upon which a black dome was impressed, and they imprinted a dome upon each block of black lead. This they did without regard to the shape of the blocks they sold, and there was evidence that the term " dome black lead " had become known in the trade as de- noting black lead of the plaintiff's manufacture. In 1877 they registered a black dome as their trade-mark for " black lead." The plaintiffs having brought an action to restrain infringe- ment of their trade-mark, the defendants applied to have it expunged from the register : — Held, that there was no reason why a dome should not be a distinctive mark for black lead, that the evidence showed it to be in fact distinctive, that it was therefore capable of registration as a trade- mark. James's Trade-mark, In re, or James v^ Parrij, 33 Ch. D. 392 ; 55 L. J., Ch. 915 ; 55. L. T.'415 ; 35 W. R, 67— C. A. Separate User of Distinctive Words beforet 1876.]— In 1877 Perry Davis & Son were regis- tered as proprietors of a trade-mark consisting of the words " Pain Killer," in respect of which, they claimed usei' for forty years prior to regis- tration, in connexion with a medicine sold by them. On an application by L. for the removal of the name from the register, the evidence; showed that, although the medicine had been spoken of and ordered as " Pain Killer," it had not been sold under that name alone. The: wrapper round the bottles, and a label attached, to the bottles, described the article as " Perry Davis' Vegetable Pain Killer ; " on the bottles, were stamped the words, '-Davis' Vegetable Paia Killer," and the government stamp attached bore the description "Pain Killer" alone: — Held, that as the words " Pain Killer" had not been used alone as a trade-mark before th& passing of the Trade Marks Registration Act,. 1875, they were not a proper mark for registra- tion under s. 10 of that act :— Held, also (by Fry and Lopes, L.JJ.), that the words were not " special and distinctive words " within the^ meaning of that section. Quaere, whether words, must be special and distinctive from their own proper nature or internal force, or whether they may acquire a distinctive character by user as. applied to goods. Harbord, In re, 58 L. T. 69i — 0. A. In order to obtain registration of a word as having become " distinctive " within s. 64, sub-s^ 3, of the Trade Marks Act, 1883, by user or- recognition in the trade, such user or reooguitioa must have been prior to August, 1875. Accord- ingly applications for a direction to the Comp- troller-General to proceed with the registration as trade-marks of the words " Melrose J'avourite Hair Restorer" and "Electric Velveteen," the-, ute of which by the applicants would, indepen- dently of the act, by user and recognition in th& trade since August, 1875, have been entitled to. protection, were, in both cases, refused, ^'an Duzer's Trade-marli, In re ; Leaf's 'frade-marli,. In re, H4 Ch. D. 623 ; 56 L. J., Ch. 370 ; 56 L. T. 286 ; 34 W. R. 294— C. A. In order to entitle a person to register a trade- mark under s. 10 of the Trade Marks Registration Act, 1875, consisting of special and distinctive words, or combination of figures or letters, used as a trade-mark before the passing of that act^ the words must have been used as a trade-mark by themselves, and not in conjunction with any other device. In 1876 S. registered the words. " Diamond Cast Steel," as a trade-mark for steel and for files. The words were never used on. goods by themselves, but always in combination with a device and a name. The words were^ however, sometimes stamped on one side of the: goods, whilst the device and name were stamped on the reverse side. Upon an application ta rectify the register of trade-marks by expunging; this trade-mark : - Held, that the case was within the principles upon which Palmer's Trade-mark^ In re (24 Ch. D. 504) was decided; and that as there had been no separate user of the wordst as a trade-mark, the same ought not to have been registered, and must, therefore, be expunged f rota 1843 TEADE AND TEADE MKKK— Trade Marks. 1844 ■the register. Spencer's Trade-marh, In re, 5i X. T. 659— C. A. "Heading" — "Valvoline."] — L. and E. invented in 1873 a process for making a certain 'description of lubricating oil which they called ■" Valvoline," and in that year registered in America as their trade-mark the word accom- panied by a device. In August, 1877, they regis- tered the same trade-mark in England, and in February, 1878, registered the word "Valvoline" alone as their trade-mark. After this mark had Tjeen five yeax's on the register tlrey commenced an action against W. to restrain him from selling under the name of Valvoline any oil not made by the plaintiffs. W. moved to rectify the register by striking out the trade-mark " Valvo- line." The court came to the conclusion on the ■evidence that L. and E. had not used " Valvoline " alone as a trade-mark, either in America or England, before the passing of the Trade Marks -Eegistration Act, 1875, but only in conjunction with a device, and that " Valvoline " was a word invented to describe the particular class of oil at the same time as the process was invented, and was used as a descriptive term for that particular kind of oil. The process was not the subject of a, patent : — Held, that a single word cannot be registered under the act, on the ground that it was used as a "heading," unless it was so used before the passing of the act ; and that, therefore, the trade-mark " Valvoline " must be removed from the register. Leovnrd v. WelU, Leonard's Trade-marlt, In re, 26 C,i. D. 288 ; 53 L. J., Ch. «03 ; 51 L. T. 35— C. A. Affirming 32 W. E. 630 — Pearson, J. " Distinctive Device" — Portrait — Words Pnh- lici Juris. ] — A device consisting of a portrait of the original inventor of the article sold, with words above and below it, the essential portion •of which have become the common property of the trade and publici juris, is not a distinctive •device within s. 10 of the Kegistratiou of Trade Marks Act, 1875 (repealed by 46 & 47 Vict. u. 57), «nd cannot be registered as a trade-mark under that act. Anderson's Trade-marli, In re, 54 L. J., Ch. 1084— C. A. Affirming 26 Ch. D. 409 ; 32 W. R. 677— Chitty, J. Descriptive. Words.] — Where one person registers under the Trade Marks Eegistration Act, 1875, a trade-mark consisting of a distinctive ■device, together with a word descriptive of the ■article to which the mark is to be applied, another person is entitled, notwithstanding such registra- tion, to register for the same goods a trade-mark ■consisting of a different distinctive device, toge- ther with a descriptive word identical with or similar to the word comprised in the earlier trade-mark. Horslmrgli' s AppUeation, In re, ■63 L. J., Ch. 237, n. ; 50 L. T. 23, n. ; 32 W. E. ■630, n.— Jessel, M.E. iv. Similarity — Calculated to Deceive. Duty of Comptroller.] — Section 72, sub-s. 2, of the Patents, Designs, and Trade Marks Act, 1883, provides that, "The comptroller shall not register with respect to the same goods, or •description of goods, a trade-mark so nearly resembling a trade-mark already on the register ■with respect to such goods, or description of gv^...,, as to be calculated to deceive." The comptroller had refused to register a trade- mark in respect of linen and hemp piece-goods, on the gi-ound that it too closely resembled three trade-marks which had been already registered in the same class in 1876 and 1884. On a summons to direct the comptroller to proceed with registration of the trade-mark :— Held, that, though it were a case in which the similarity might not be such as to induce the court on that fact alone to grant an injunction, it was the duty of the comptroller to consider, having regard to the course of trade, whether the trade-mark so nearly resembled the other as to be calculated to deceive, and he would be justified in refusing to register a trade-mark so nearly resembling another that registration would encourage litigation ; and that this trade- mark was likely to mislead persons -wishing to buy linen stamped with one of the earlier trade-marks. Speer, In re, 55 L. T. 880 — Kay, J. See also Price's Patent Candle Company, In re, post, col. 1849. Old Mark.] — An application made in Novem- ber, 1884, by an American firm of oil manufac- turers for the registration under the Act of 1883 of a trade-mark for illuminating oils, which mark had been used by them in America since 1872, and had been kno-wn in England as the " White Eose " mark prior to 1875, was refused by the comptroller upon the ground that there had been on the register since 1878 a similar mark for illuminating oils called the " Eosaline" mark, of which an English firm were the pro- prietors : — Held, that although there was enough similarity between the two marks to render it possible for the public to mistake the one for the other, yet as the " White Eose "' was to all intents and purposes an old mark, it ought to be admitted to registration. " White Rose " Trade- mark, In re, 30 Ch. D. 505 ; 54 L. J., Ch. 961 ; 53 L. T. 33 : 33 W. E. 796— Kay, J. Mode of Comparison.] — When comparing a trade-mark tendered for registration with an- other mark already on the register or assigned by the Cutlers' Company, Sheffield, for the purpose of ascertaining whether the new mark so nearly resembles the old one as to be calcu- lated to deceive, the court will have regard to the nature of the goods, to the nature and size of the mark, to the mode of affixing it to the goods, to the probable result in practice, and to all the circumstances of the case, and if, having regard to such circumstances, the new mark would be likely to be mistaken for the old one, registration will be refused. Rosing's Applica- tion, In re, 54 L. J., Ch. 975 (n.)— C. A. R. applied for the registration of a new mark for cutlery and metal goods included in classes 12 and 13, such trade-mark representing a part of his armorial bearings, and consisting of a curved horn, with a twist in the middle, and surmounted by two roses. The application was opposed by the Cutlers' Company of Sheffield, on the ground that the mark so nearly resembled a Sheffield mark for similar articles assigned forty-five years previously to H., as to be calcu- lated to deceive. H.'s mark consisted of a curved horn, suspended by a looped cord. The marks were sufficiently distinct when printed in a large size, but the Court of Appeal being of opinion that, in practice, when the two marks 1845 TEADE AND TEADE MARK— Trade Marks. 1846 were stamped in a «naU size on small metal articles, and having 3:egard also to the proba- bility of blurring taking place in the process of stamping, the one mark would be likely to be mistalcen for the other : — Held, that registration must be refused, Ih. L. had used from 1864, in respect of goods in- cluded in class 13, a trade-mark consisting of the head of Minerva, down to and including the shouldei'S, the head bearing a helmet with I'ing- lets hanging down behind. In 1884, being about to extend his business to class 12, he applied to register for that class the same head with the word '-Athena " under it. This application was opposed by B., who had used from 1869 a cutler's mark, consisting of a head with the word" way" under it. '.The head had a sort of wig upon it, with small curls behind, and included the neck and part of the shoulders. In 1884 B. regis- tered this mark under the Act of 1883, as an old cutler's mark, but the design actually registered departed from the old mark which he used, the head on the register being an uncovered head with a few sparse hairs upon it, and taking in only a small portion of the neck and no part of the shoulders : — Held, that the question whether a, new mark is so like another as to be calculated to deceive is to be decided by considering whether the new mark is so like the other that when both are fairly used one is likely to be mistaken for the other, regard being had to size, the material on which the mark is to be im- pressed, the effects of wear and tear, and other surrounding circumstances ; that L.'s mark was to be compared with the mark B. had put on the register, not with the mark which he had used ; and that B., whose evidence was directed to a comparison between L.'s mark and the mark which B. had used, which was much more like L.'s mark than B.'s registered mark was, had not made out that the new mark was calculated to deceive. Lyndon's Trade-marli, In re, 32 Gh. D. 109 ; 55 L. J., Ch. 456 ; 54 L. T. 405 ; 34 W. K. 403 — C. A. Cp. LamieH's Trade-marlt, In re, post, col. 1848. rnder Act of 1875. ]— The prohibition of s. 6 of the Trade Marks Eegistration Act, 1875, against registering, in connexion with a trade- mark, words the exclusive use of which would not, "by reason of their being calculated to deceive, or otherwise, be deemed entitled to protection in a court of equity," refers to decep- tiveness inherent in the words themselves, and not to deceptiveness arising from similarity to words comprised in other trade-marks. A device having been registered together with the word "ValvoUne" as a trade-mark for lubricating oil : — Held, that a different firm might register for the same article the word " Val voleum " in ■combination with a different device. HorsburgKs Application, In re, supra. The plaintiffs, who were manufacturers and vendors of condensed milk and other similar articles in 1876 registered, in respect of their goods, a trade-mark, the distinctive feature of which was : the representation of a, milk-maid. Previous to' this their goods had become known and were ordered by the public under the de- scription of "Milk Maid" or "Dairy Maid" brand, and : in. 1884 they registered the same mark in conjunction with the words " Milk Maid Brand."" . In 1882 the defendant, who carried on a similar business, registered a mark which, though not altogether like the plaintiff's mark, consisted of a drawing of a dairy-maid or milk-maid in conjunction with the words " Dairy Maid," the registration being in respect of a class of goods which covered those sold by the plaintiffs. He afterwards used this mark in the sale of condensed milk in tins like those of the plaintiffs : — Held, that the plaintiffs were entitled to an injunc- tion restraining the defendant from infringing their mark, and also to have the register recti- fied by limiting the defendant's mark to goods other than those in respect of which the plain- tiff's mark was registered. Anglo-Swiss Con- densed MilTi Company v. Metcalf, 31 Ch. D. 454 ; 55 L. J., Ch. 463 ; 34 W. R. 345— Kay, J. See Jones's Trade-marli, In, re, ante, col. 1835. Fraudulent User of Toreign Trade Mark.] — See Heaton's Trade-marli, la re, ante, col. 1838. V. Three-marli Rule. Common to the Trade.] — ^A mark which had been registered as a trade-mark, is at the time of registration " common to the trade " when similar (though not in each case identical) marks are then in use by more than three persons engaged in the same trade, although in some of the cases the mark is not actually placed on the goods, but is only used on billheads, trade circu- lars, advertisements, or show-cards. Wragt/'s Tvade-marlt, In re, 29 Ch. D. 551 ; 54 L. J., Ch. 391 ; 52 L. T. 467— Pearson, J. When a trade-mark has been used by more than three persons engaged in the same trade, it is common to the trade, and cannot be registered by any one. Hyde 4' Co.'s Trade-marli, In re, 7 Ch. D. 724 ; 54 L. J., Ch. 395, n. ; 38 L. T. 777 — Jessel, M.K. When a trade-mark has been used by more than three different persons in the same trade, it is not distinctive, but common to the trade, and cannot be registered by any of them. Walliden's Aerated Waters Company's Application, In re, infra. Old Mark.] — When a trade-mark has been used by not more than three different persons in the same trade as an old-mark — that is, before the 13th of August, 1875 — each may register it. Walliden Aerated Waters Company's Applica- tion, In re, 54 L. J., Ch. 394, n.— Jessel, M.E. When it has been used by one or two persons as an old mark, it can only be registered by another person ■ as a new mark if the consent of the prior owner or owners is obtained. lb. Eesemhlanee.] — Semble, that marks which so closely resemble one another that the use of the one might be restrained in an action by the owner of the other, will be treated as identical for the purposes of the above rules. Ih. Foreign User.] — In 1844 the predecessors in business of L. & K. invented a trade-mark and used it on all the articles manufactured by them. L. & K. registered this in 1880. M. now applied for the registration of a trade-mark identical with that of L. & K., with the exception that he substituted his own name for that of " Murray and Lanman," which appeared in the original trade-mark. He alleged foreign user since 1869, and that he had registered abroad, and claimed 1847 TEADE AND TRADE MATXK— Trade Marks. 1848 to have his trade-mark registered here as an old mark under the " throe-mark rule : " — Held, that the resemblance between the two trade-marks ■was so close that the later one must have been copied from the earlier one ; that foreign user alone could not entitle the applicant to registra- tion, or bring him within the operation of the " three-mark rule " as being contemporaneous user before the Trade Mark Act, 1875. Munoh's Application, In re, 50 L. T. 12 — Chitty. J. vi. Words Public i Juri.i. New Article named by Inventor.] — If a person who invents a process for making a new article invents at the same time a new name fordescrib- ing such article, and the article comes to be known by that name only, he cannot afterwards, when everybody is at liberty to make that article, claim a monopoly in the name ; there- fore, the defendants were not, by using the name " Valvoline," which was the only name by which the substance in question was known, infringing any rights of the plaintiffs, or representing their goods as made by the plaintiffs, and that the fact that the plaintifis had in consequence of the registration enjoyed a practical monopoly of the name for five years did not, as the name had been improperly put in the rigister, give them any better right than they would otherwise have had. Leonard \. Wells, Leonardos Tradc-marh, In re, ante, col. 1843. Name of Patented Article.] — Semble, that the name by which a patented article is generally known, and which is therefore descriptive of it, becomes publici juris at the expiration of the patent, and cannot properly be registered as a trade-mark. Ralpli's Trade-marh, In re, 25 Ch. D. 194 ; 53 L. J., Ch. 188 ; 49 L. T. 504 ; 32 W. K. 168 ; 48 J. P. 135— Pearson, J. A patentee has no exclusive right to the use of words properly descriptive of a patented article, after the patent has expired. Palmer s Trade- mark, In re, 24 Ch. D. 504 ; SO L. T. 30 ; 32 W. R. 306— C. A. c. Practice. i. Generally. Begistratlon not completed within Twelve Months — Abandonment.] — An application for registration of a trade-mark was made in the year 1879, but registration was not effected until February, 1885, after the commencement of the Patents, Designs, and Trade Marks Act, 1883. S. 63 of that act provides that " where the registration of a trade-mark has not been and shall not be completed within twelve months from the date of the application, by reason of default on the part of the applicant, the applica- tion shall be deemed to be abandoned ; " and s. 113 provides that the repeal of previous en- actments therein contained shall not affect any application pending ;■ — Held, that the effect of s. 63 and s. 113 read together was that such pending applications for registration as were not completed by registration within the period of twelve months prescribed by s. 63 came within the operation of the last-mentioned section, that the registrar of trade-marks was therefore bound to treat the application as abandoned, and that the mark was improperly registered. Hayward'n Trade-marh, In re, 54 L. J., Ch. 1003 ; 53 L. T. 487— Kay, J. Section 63 of the Trade Marks Act of 1883 is retrospective in its operation. S., a foreigner, applied in 1876, through an English trade- mark society, for registration of a trade- mark. The Cutlers' Company gave notice of a similar mark which had been assigned by them, and the registrar thereupon wrote to S., at the society's address, to say that he could not proceed with the application until S. had obtained the leave of the court. This letter was never communicated to S. by the society, who proceeded no further with the application ; but S. having seen the advertisement of his applica- tion in the " Trade Marks Journal," believed that his mark had been registered, and N., an agent of his, sold goods in England marked with hi.* mark. In the year 1877 the plaintiffs registered a mark resembling the Cutlers' mark, and in 1883 brought an action against N. to restrain him from infringement, and S., finding his mark was not on the register, then made a fresh appli- cation for registration : — Held, that S. was " in default," and that his original application must be deemed to have been "abandoned" within the meaning of s. 63 of the Act of 1883, and could not now be proceeded with. Jaclison v. Napyer, infra. Appointment of Agent —Notices— Fresh Appli- cation. J— 'i'iieie is nothing in ihe Trade Marks Act of 1 883 to take away the common law right of an applicant for registration who is sui juris to appoint an agent for all the purposes of his application, and if he does so the notices required by the Act may properly be sent to him through such agent. If such agent does not inform the applicant of notices received the applicant is- entitled to make a fresh application for registra- tion notwithstanding s. 76 of the Act of 1883. Jackson V. jSapper, Schmidt's Trade-mark, In re, 35 Ch. D. 162 ; 56 L. J., Ch. 406 ; 55 L. T. 836 ; 35 W. E. 228— Stirling, J. Sheffield Eegister — Old Corporate Mark — Jurisdiction of Cutlers' Company.] — The Cutlers' Company, on the application of L., registered in the Sheffield Registry an old corporate mark of a pipe and dart, of which he was primS, facie owner, notwithstanding notice of opposition by W., the owner of the mark of a pipe only, and without hearing W. W. appealed to the comp- troller, who decided that no appeal lay to him against the registration. W. then applied to the court : — Held, that the Cutlers' Company acted rightly in registering L.'s mark without hearing W. in opposition, as the registration was a ministerial duty under sub-s. 2 of s. 81 of the Patents, Designs, and Trade Marks Act, 1 883 ; that there was no appeal to the comp- troller ; and that L.'s mark was not so similar to that of W. as to be calculated to deceive. Lavihert's Trade-mark, In re, 37 W. R. 154— North, J. On an application for registration for mcti.l goods in class 5 which were not included in the Cutlers' Company's Act :— Held, that the Cutlers' Company were not entitled to oppose with respect to goods not included in their acts, and that registration in class 5, limited to the specified articles, should be allowed. Rcdng's Application, In re, 54 L. J., Ch. 975, n. C. A. 1S49 TIIADE AND TRADE MARK— rr«de Marks. 1850 Refusal by Comptroller to register -Appeal — Board of Trade.] — A person whose application to register a trade-mark has been refused by tlie comptroller cannot appeal direct to the court from such refusal, as a person aggrieved by the omission of his name from the register under s. 90 of the Patents, Designs, and Trade Marks Act, 188S, but must take the special coarse pre- scribed by s. 62, sub-s. 4, of appealing to the Board of Trade from the comptroller's decision. "Normal" Trade-nmrli. In re, 3.") Ch. D. 231 ; r)6 L. J., Ch. 513 ; 56 L. T. 246 ; 35 W. R. 461— C. A. Opposition to Application — Jurisdiction of Court.] — Where, upon opposition to an applica- tion to register a trade-mark, the case stands for the determination of the court under .». 69, snb-s. 4, of the Patents, Designs, and Trade Marks Act of 18S3, the court has jurisiiction to cuter into and determine all questions arising upon the objections, including, in a case where the comptroller has already registered the mark, the question whether the mark has been rightly jidmittcd on the register. Aricn:, In ?■;■, 35 Ch. D. 218 ; 56 L. J., Ch. 524 ; 56 L. T. 252 ; 35 W. E. 527— C. A. An application was made by the Sanitas Com- pany to register the word " Sanitas " as a trade inark for goods in class 3, under the Patents, Designs and Trade Marks Act, 1883. The Comptroller-General refused to proceed with the registration, on the ground that there were already on the register two trade-marks com- prising the word " Sanitas.'' On the matter being refei-red to the court, in addition to the objection taken by the Comptroller-General, two further objections were raised, and it was con- tended that no objections ought to be raised that had not been taken, by the comptroller : — Held, that any objection could be entertained "by the court, and that the refusal to register, lased on the previously registered trade-marks, ■was perfectly right. " Sanitas" Trade-marh, In re, 58 L. T. 166— Kay, J. Duty of Comptroller.]— The comptroller is justified in refusing to register a label so nearly resembling another label already on the register as to be calculated to deceive, until the opinion of the court should have been obtained autho- rising him to do so. Price's Patent Candle. Company, Inre, 27 Ch. D. 681 ; .54 L. J., Ch. 210 ; 51 L. T. 653 — Pearson, J. See also Speei; In ■re, ante, coL 1844. Costs of Appeal to Court.]— The costs of a successful appeal to the court from a refusal by the Comptroller-General to register a trade-mark must be paid bv the appellant. - Alpine " Trade- marlt, In re, 29 Ch. D. 877 ; 54 L. J., Ch. 727 ; -53 L. T. 79 ; 33 W. E. 725— Chitty, J. Jurisdiction to Order Comptroller to pay Costs.] — Where the Comptroller-General of Patents unsuccessfully opposes an application -for registration, the court has no jurisdiction to ■order him to pay the costs of the applicant, but may refuse to give him anv costs. Leafs Trade- mark, In re, 33 Ch. D. 477 ; 55 L. J., Ch. 740 ; 55 L. T. 254 ; 35 W. R. 99— V.-C. B. ii. Mc'otijication of Register. Application within what Time — Be^stration for Five Years.] — The right to the exclusive use of a. trade-mark, after the expiration of five years from the date of registration, given by the Trade Marks Act, 1883, s. 76, is subject to and controlled by s. 90, and therefore any person who considers himself aggrieved by any entry made in the register without sufficient cause is laot precluded by the expiration of five years from the date of such registration from showing that the mark ought not to have been registered. Lloyd's Trade-iruirlt, In re, Lloyd v. Bottomley, •21 Ch. D. 646 ; 54 L. J., Ch. 66 ; 51 L. T. 898— Chitty, J. Sections 3 and 4 of the Trade-marks Registra- tion Act, 1875, do not confer on the first or subsequent registered proprietor of a trade-mark who has been on the register for five years the absolute right to the exclusive use of his trade- mark as against all the world ; the intention of the sections is merely to afford him assistance in bringing an action for infringement by dis- pensing with the necessity of his adducing evidence in that action of exclusive user ; and the sections are no bar to jm application under s. 5 to rectify the register on the ground that the trade-mark is improperly on the register or should be restricted to certain goods. Edwards V. Dennis, Edwards' Trade-marlt, In re, 30 Ch. D. 454 ; 55 L. J., Ch. 125 ; 54 L. T. 112— C. A. Reversing 1 C. & E. 428— A. L. Smith, J. The registration of a mark as a trade-mark and the lapse of five years do not, under s. 76 of the Trade Marks Act, 1883, confer on the person who has made the registrati'm an inde- feasible title to the use of the mark as a trade- mark if, by reason of its being at the time of registration in common use in the trade, it ought not to have been registered. The lapse of five years cannot make good a registration which was in its inception invalid. A trade-mark which was originally improperly registered ought even after the lapse of five years, to be removed from the register, because the registration might imable the person who has made it to commit a fraud. Wragf/s' Trade-mark, In re, 29 Ch. D. 551 ; 54 L.J.,'Ch. 391 ; 52 L. T. 467 —Pearson, J Onus of Proof.] — Where a person seeks to remove a trade-mark from the register, the onus is upon him to shew that it ought to be removed, but though his own evidence may be insuflicient for the purpose, the onus is discharged if it appears from the evidence of the owner of the mark that it ought not to be on the register. Leonard v. Wells. Leonard's Trade-mark, In re, 26 Ch. D. 288 ; 53 L. J., Ch. 603 ; 51 L. T. 35— C. A. Common Mark — Costs.] — A person who registers a trade-mark does so at his own risk, and if he registers one which is common to the trade it will be removed from the register on the applica- tion of the parties aggrieved, and he will have to pay the costs of the application. It makes no difference that he was the person who was the first to adopt the trade-mark if it had become common at the date of registration. Hyde and Company's Trade-mark, In re, 7 Ch. D. 724 ; 52 L. J., Ch. 395, n. ; 38 L. T. 777— Jessel, M.R. 1851 TRADE AND TRADE MA.BK— Trade Marks. 1852 Overlooking Advertisement.] — There ia no obligation on persons interested to see an adver- tisement in the Trade-marJig Journal of an application for registration, and the fact that they have not seen such an advertisement or opposed the application is no bar to their apply- ing to have the mark removed from the register after the registration is complete. lb. Calculated to Deceive,] — A firm of distillers I'egistered, as a trade-mark for their cherry brandy, a hunting-scene in connexion with the word " Sportsman." Their cherry brandy con- sequently became generally known as " The Sportsman's" and also as "Huntsman's" and " Hunter's " cherry brandy. Some years after- wards another firm of ..distillers registered a trade- mark consisting of ' a hunting scene, and the words " Huntsman's cherry brandy. " There was, however, no resemblance between the two huntino; scenes : — Held, that, notwithstanding the dissimilarity in the designs, the latter trade- mark was got up for the purpose of passing ofE cherry brandy as that manufactured by the pro- prietors of the first trade-mark, and was calcu- lated to deceive ; and that the register must be rectified by striking out the latter trade-mark. Barher's Trade - marli, In re, 53 L. T. 23 — Kay, J. See also Slair v. Stock, ante, col. 1840. Where a trade-mai-k contained the words " sole maker " immediately preceding words descriptive of an article, and it was admitted that the persons registering the mark were not the sole makers of that article, the court ordered the mark to be expunged from the register as being calculated to deceive. Hayward' s Trade- marli, In re, 54 L. J., Ch. 1003 ; 53 L. T. 487— Kay, J. Y. & Co. registered a trade-mark for fermented liquors, consisting of three triangles, two placed on a third, the space in the centre being blank. J. B. subsequently registered another mark for bottled beer, consisting of three triangles inter- laced, the space in the centre containing a stag's head : — Held, on the authority of Worthington,' s Trade-iaarh, In re (14 Ch. D. 8), that, having regard to the use which the mark subsequently registered might be put to by being coloured, it was calculated to deceive, and that so much of the mark as consisted of the triangular arrange- ment must be expunged from the register. BiegeVs Trade - mark, In re, 57 L. T. 247 — Chitty, J. Cp. cases, ante, col. 1843 et seq. Limiting Mark to Particular Goods.] — See Anglo-Swiss Milk Company v. Metcalf, ante, col. 1846. Extension of Time.] — Where an application for registration of a trade-mark was abandoned within the meaning of s. 63 of the Trade M arks Act, 1883, the court, in exercise of the discretion given by s. 90 of the act, instead of directing the mark to be expunged, ordered that the register should be rectified by inserting an entry direct- ing that the five years mentioned in s. 76 should begin to run from the date of such entry. Hay- ward's Trade-marh, In re, supra. Clerical Errors — Essential Particulars.] — A trade-mark -for sewing-cotton, as registered, con- sisted of a lion surrounded with the inscription in Russian, " Ermen and Roby, Manchester." The initial "B " was, however, in the English and not in the Russian character. The owners of the mark had for two years used it in the Russian trade, with the alteration of the English E to the Russian E, and with the insertion of the word " of " in Russian before the word " Manchester." The comptroller having declined to alter the register under s. 91, application to the court was made by the owners, under s. 92 of the Patents, &o.. Act, 1883, for leave to add to and alter the registered mark in the manner in which it had been used, and the court acceded to the application on the ground that the addi- tion and alteration were non-essential particulars. Ermen ^ Moby's Trade-ntarli, In re, 56 L. J., Ch. 177 ; 56 L. T. 230— Chitty, J. Substitution of one Name for another.] — R. & Co., wine and spirit merchants at Cognac, for some years exported to M. & Co., wine and spirit merchants at Madras, brandy, which was sold by M. & Co. in India, with a label aflixed, bearing a trade-mark of a red Maltese cross, and the name M. &, Co. This trade-mark was first put on the bottles in 1875 by R. & Co. at the instance of M. & Co., but the court found that so much of the mark as consisted of a red Maltese cross had been previously used by R. & Co., and that the intention of R. & Co. was that this mark should be exclusively used by M. & Co. so long only as they took their brandies from R. & Co., after which it should be the mark of E. & Co. In April, 1879, M. & Co. wrote to R. & Co., request- ing them to register the mark in England for M. & Co., but in September, 1879, R. & Co. registered the mark of the red Maltese cross in their own names. M. & Co. only discovered this in 1882, after the business relations between the two firms had come to an end, when they applied for rectification of the register by striking out the names of E. & Co. and substituting the names of M. & Co. as owners of the trade-mark, but the court refused to strike out the names of R. & Co. on the ground that they had only registered their old mark, and not the mark used by M. & Co. : — Held, also, that even if the names of E. & Co. had been expunged from the register^ the court would not. on their application, have inserted the names of M. & Co., inasmuch as the requirements of the Trade Marks Registration Act, 1875, and the rules thereunder as to adver- tisements. Sac, in case of an application to re- gister a trade-mark, had not been complied with. Riviere's Trade-marli, In re, 55 L. J., Ch. 545 ;. 53 L. T. 237— C. A. Sec also Wellcome's Trade- marh, In re, ante, col. 1835. "Person, aggrieved" — Trade Mark used by Eoreign Trader.] — R. & Co. registered a trade ■mark for brandy in England. M. & Co., who carried on business at Madras, but neither carried it on nor intended to carry it on in England,, applied to rectify the register by striking out the name of R. & Co. and substituting that of M. & Co. as owners of the trade-mark, alleging that they, M. & Co., were the owners of the trade- mark, and had instructed R. & Co. to register it in the name of M. & Co., instead of which R. & Co. had registered it in their own name : — Held,, that assuming M. & Co. to have no right to register the trade-mark in England, it did not follow as a necessary consequence that they could not be aggrieved by its being registered here in. 1853 TRADE AND TRADE MABK— Trade Mar) 1854 the name of another person, and that the case miist be dealt with on the merits. Riviiire'sTrade- marli, In re, 26 Ch. D. i8 ; 53 L. J., Ch. 578 ; 50 L. T. 763 ; 32. W. R. SO^— C. A. Proprietor not "Engaged in any Busi- ness, &o."] — The assignee of a patent for a washing machine applied to it the name of " The Home Washer," and registered the name as his ti'ade-mark in respect of it. He did not manu- facture the machines, or any other goods in the same class, but granted an exclusive right to a manufacturing firm who paid him royalties. They invented and patented various improve- ments in the machine, and after the expiration of the patent (six years from the registration of the trade-mark) they continued to manufacture the improved machines, and to describe them by the old name, but paid no royalties, and the registered proprietor had not, after a year and nine months from the expiration, begun to manufacture, though he had been in negotiation with manufacturers to do so in conjunction with him : — Held, that the former licensees (against whom the registered proprietor was moving for an injunction) were " persons aggrieved " within T. 33, and that the mark must be removed fi-om the register on the ground that, notwithstanding the negotiations, the registered proprietor was not "engaged in any business concerned in the goods within the same class as the goods in respect to which the mark was registered."' Ralph's Tradc-marTt, In re, 25 Ch. D. 194-; 53 L. J., Ch. 188 : 49 L. T. 504 ; 32 W. E. 168 ; 48 J. P. 135 — Pearson, J. Semble, that a patentee is " engaged in any business, &c.," so long as he receives royalties under his patent, even though he does not himself manufacture. 7 J. Non-user — Abandonment.] — In order to deprive a manufacturer of his right to a trade-mark, the use of which has been practically given up for a period of five years, mere discontinuance of user for lack of demand, though coupled with non- registration, and non-assertion of any right, is not enough ; there must be evidence of distinct intention to abandon. In 1874, A., a German soap manufacturer, adopted a trade-mark for a particular kind of soap, which for about two years was manufactured and sent to this country in large quantities for exportation to Australia, but from 1876 until 1882 the manufacture and sale of soap thus marked fell off, until it practically ceased, and the existence of the particular mark was in May, 1882, forgotten by A. In 1880, B., a manufactuier of soap in the same part of Ger- many, adopted, in complete ignorance of A.'s mark, a precisely isimilar mark for soap sent to this country for exportation to Australia, and in August, 1880, he registered his mark under the Trade Marks Acts in this country. In July, 1882, after the commencement of proceedings by B. to restrain an infringement of his registered trade- mark by A., A. applied for registration of his mark of 1874. Upon application (1) by B. to restrain this infringement of his trade-mark ; (2) by A. to have his trade-mark registered ; (3) by A. to have B.'s trade-mark removed from the register : — Held (1), that mere non-user by A. of his mark between 18^6 and 1882, though coupled with non-registration, did not, having regard to the fact that he-had not ceased to carry on his business, and had not broken up the mould. and that a number indicating soap thus market! was retained on his price lists, did not amount to. an abandonment by A. of the mark, so as to give B. any exclusive right to his registered mark,. (2) That the existence upon the register of B.'s.. mark did not prevent the court from granting leave for the registration of A.'s mark. (3) That previous bon^ fide registration of B.'s mark in ignorance of any claim by A., followed by larger dealings under that mark, prevented A., after the lapse of two years, from getting B.'s mark ex-- punged from the register. Mowson v. Boahm, 2(i Ch. D. 398 ; 53 L. J., Ch. 932 ; 50 L. T. 784 ; 32 W. E. 612— Chitty, J. iii. Common Mloments — Disolaimer. Practice as to.]— H. applied on the 28th of December, 1883, to register as a trade-mark a label surrounded by a pattern of ornamental design, and containing in the centre a rect» angular black space, bearing the words " Hud- son's Carbolic Acid Soap Powder," in whit& letters. On the outside of the rectangular space were other words descriptive of the purposes, and advantages to be derived from the use of' the soap powder. This label had not been used before the application ; — Held, that the appli». cation must be treated as being made under the act of 1875, and the court could not enforce as a term of registration, disclaimer of the words " Carbolic Acid Soap Powder," which were common to the trade and merely descriptive — that act having no provision similar to that con- tained in s. 74 of the act of 1883 ; that the label was a distinctive label and capable of registra- tion as a trade-mark under the act of 1875, but that only the label as a whole could be claimed, as a trade-mark, and that no right could be acquired by such registration to the exclusive use of those common words, however long might ba the user of them ; that, whether under the act of 1875 or of 1883, the fact of there having been no. previous user did not prevent the registration — the act of 1875 having effected a change in the law previously existing by making the mere act. of registration, as regards any of the particulars specified in s. 10, equivalent to the public user- which before that act was the essence of a trade-mark. Hudson's Trade-marks, In re, 32 Ch. D. 311 ; 55 L. J., Ch. 531 ; 55 L. T. 228 ; 34 W. E. 616 -C. A. When an application is made for the registra- tion of a tracte'-mark composed in part of dis- tinctive elements and in part of elements common to the trade, the proper form of regis- tration is to register the entire mark, and to add a note disclaiming the exclusive right to the common elements. Kulm's Trade-marlts, In re^ 53 L. J., Ch. 238, n.— Jessel, M.E. Objections having been raised by the owner of' a registered trade-mark to the proposed registra-. tion of another trade-mark for use in connexion with goods included in classes for which the first mark was used, but no formal opposition having been lodged to the application for regis-- tration, an agreement was entered into between the registered owner and the applicant that na- formal opposition should be lodged ; that the applicant should use his mark in connexion only with goods actually exported to certain specified countries ; and that he would, in con-.. nexion:'with the registration, cause a note of. TEADE AND TRADE MARK— Trade Marks. 1856 this restriction on the use of his trade-mark to be entered on the register. Upon an ex parte application by the applicant, in pursuance of ihis agreement, the court directed the comp- troller of trade-marks to enter such a note on the register. Keeps Trade-mark, In re. 26 Ch. O. 187 ; 54 L. J., Ch. 637 ; .50 L. T. 4.53 ; 32 W. K. 427— Peai'son, J. Where a trade-mark, not otherwise objection- jable, contained words which were admitted to he common in the trade, the court directed the register to be rectified by entering thereon a <;lisclaimer of the intention to claim any right of ■exclusive use of such words. Hayioard's Trade- mark, In re, 54 L. J., Ch. 1003 ; 53 L. T. 487— -Kay, J. Two manufacturers of whiskey applied for I'L'gistration of a trade-mark consisting of '(amongst other things) the words " Cruiskeen ?jawn," and entered into an agreement that they -should respectively be at liberty to register their trade-marks, but that the user should be re- stricted, and that a note of the restriction should be entered on the register, with liberty for either party to apply as a person aggrieved for recti tication of the register. The marks were re- -aistered without a note of the restriction. On t Ch. D. 231) followed. Wittman v. Oppenheim, 27 Ch. D. 260 ; 54 L,. J . Ch. 56 ; 50 L. T. 713 ; 32 W. E. 767— Pearson, J. Costs.]— An innocent infringer of a regis-' tered design must pay the costs of a motion for an injunction to restrain him from infringing,: though the plaintiflE had given him no notice of the infringement before serving him with. the writ in the action. li. V. TBADE TTNIONS. Eules— Legality — Winding up — Distribntioa of Funds.] — Members of a trade association were expelled for breach of rules in restraint of trade. The association passed a resolution to wind up, with a direction to their trustees to divide the ■ surplus assets among the persons entitled under the rules. An inquiry was directed on summons as to who were the persons entitled, and in what ' proportions : — Held, that the expelled members were properly excluded in the chief clerk's cer- tificate made in answer to the inquiry. Strioli, V. Swansea Tin Plate Company, 36 Ch. D. 558; 57 L. J., Ch. 438 ; 57 L. T. 392 ; 35 W. E. SSI- North, J. Trade Protection Society — Eule in Restraint of Trade.] — A society established for the pro- tection of a particular trade contained a rule that no member should employ any traveller, carman, or outdoor employ^ who had left the service of another member without the consent, in writing, of his late employer, till after the expiration of two years : — Quaere, whether such a society was to any and what extent within the Trade Union Acts, 1871 and 1876. Mineral Water, S,-c., Society v. Booth, 36 Ch. D. 465 ; 57 L. T. 573 ; 36 W. E. 274— C. A. Misapplication of Money by Officer — Sum- mary Conviction — Extinguishment of Debt.] — The treasurer of a local branch of a trades union fraudulently misapplied certain moneys belonging to his society, and was summarily pro- ceeded against and ordered to ■ pay the amount claimed, and 5^. by way of penalty. He made default in payment of the two sums and was sentenced to two months' imprisonment with hard labour. He was afterwards proceeded against by the general secretary of the union in the county court for the amount originally claimed, but the county court judge nonsuited the plaintiff on the ground that he was not en- titled to maintain the action. The plaintiff . moved to set aside the nonsuit : — Held, on the motion to set aside the nonsuit, that, as the plaintiff had had recourse to the j-emedy pro- vided by s. 12 of 34 & 35 Vict. c. 31, and the defendant had been punished, the punishment suffered by him operated as an extinguishment of the debt. Knight v. Whitmore, 53 L. T 233 ; 33 W. E. 907— D. Bight of Guardians to Reimbursement.] A trade union is not a ."benefit or friendly so- ciety" from which guardians of the poor can 1861 TRAMWAYS. 1862 ■claim reimbursement under s. 23 of the Divided Parishes Act, 1876 (39 & 40 Vict. c. 61), s. 23, in respect of the maintenance of a pauper. Winder y. Kingdon-upon.mdl,2Q Q. B. D. 412; 58 L. T. 583 ; 52 J. P. 535— D. TRAMWAYS. Liability for Accident — Promoters or Les- sees.] — The Tramways Act, 1870 (38 & 34 Vict. c. 78), regulating tramway companies authorised by statute to use tramcars in the public streets, enacts by s. 55 that " The pro- moters or lessees, as the case may be, shall be answerable for all accident, damages, and in- juries happening through their act or default, or through the act or default of any person in their •employment, by reason or in consequence of any of their works or caniftges. . . " : — Held, that s. 55 applies only to a wrongful act or default, -and does not make the promoters or lessees an- swerable for mere accident caused without negli- gence by their use of tramcars. Brooldelmrst v. Mamchester Steam Tramways Company, 17 Altered Conditions. ] — Where f ul ly paid-up shares in a banking company were bequeathed to trustees, with power to retain the investment, and the shares after the testator's death were altered in amount and became liable to calls : — Held, that by reason of the changes > that had taken place, the shares were no longer in the same state of investment as at the ,, testator's death, but were iu a state of investment unau- thorised by the will, and that the trustees must convert them. il/oj')v'.«. In re, Bwohnill v. Morris, 64 L. J., Ch. 388 ; 52 L. T. 462 ; 33 W. R. 445— Pearson, J. 2. RIGHT TO INDEMNITY. Proceeding? to Secover Property not lost by Trustees.] — Sec Tudlall v. Medlicott, post, col. 1891. By Cestui Que Trust- Shares — Action before Call.] — Certain moneys belonging to A. were in- vested in shares in a banking company in the joint names of A. and B., the ultimate trust being for the estate of A., who predeceased B. The company went into liquidation and calls would be made upon the shareholders, on the list of whom the executor of B. would be put : — Held, that the executor of B. was entitled to be indemnified by the estate of A., and might bring an action for and obtain a declaration of indemnity before he was placed on the list and before any call was made on him. Frascir v. Mvrdooh (6 App. Cas. 855) discussed. Evghes- Hallett y. Indian Mammoth Gold Mines Company (22 Ch.' D. 561) distinguished. Holbs v. Wayet, 36 Ch. D. 256 ; 57 L. T. 225 ; 36 W. R. 73— Kekewich, J. Within what limits.] — The right of a trustee to be indemnified out of his trust fund for money expended by him in its preservation, is strictly limited to the trust fund. Leslie, In re (23 Ch. D. 552) explained. Winclielsea' s (^Earl) Policy Trusts, In re, 39 Ch. D. 168 ; 58 L. J., Ch. 20 ; 59 L. T. 167 ; 37 W. E. 77— North, J. The right of a trustee to be indemnified out of the trust estate covers not only payments actually made by him, but also his liability to pay ; and by virtue of this right of indemnity a trustee is entitled to resort in the first instance to the trust estate for necessary expenses. Blun- dell, In re, Blundell v. Biundell, 40 Ch. D. 370 ; 57 L. J., Ch. 730 ; 58 L. T. 933 ; 36 W. R. 779— Stirling, J. Effect of— Breach of Trust.]— &'c Beans v. Benyon, post, col. 1886. 3. EIGHT OF CONTRIBUTION FROM CO-TEUSTEE. In what Cases.] — H., C, and T., trustees, in- vested a sum on mortgage. The security turned out to be insuflScient, and a loss was sus- tained. In a suit instituted by the beneficiaries it was declared that T., C. and her husband, and! the estate of H. were jointly liable to make- this loss good, and numerous orders were made- directing C. and her husband and T. to pay cer- tain sums into court, and eventually the plain- tifEs, who were the trustees of a settlement which comprised certain portions of H.'s estate, paid the whole sum into court. The plaintifEs. then sued T. for his one-third contribution, and obtained judgment, but by reason of his insoK vency recovered nothing. They then sued Mr^ and Mrs. C. for half contribution. There was an arrangement between the trustees that Mr., and Mrs. C, who were resident abroad, should not be troubled about the trusts, and, as a fact,, they did nothing therein : — Held, that this was. no bar to contribution, for where one trustee acts, honestly though erroneously, the other trustee who by doing nothing neglects his duty more- than the acting trustee, is not entitled to indem* nity. Baeon v. Camplumsen, 58 L. T. 851 — Stirling, J. Trustees were held liable to replace sums im- properly invested by them. One of the trustees^ A., was a solicitor, authorised to make profes- sional charges for work done for the trust. The other was the widow of the testator, and the tenant for life under his will of the trust funds. A. took the more active part in making the in- vestments, and was paid costs for his professional work, charging scale fees both for negotiating- the loans, deducing the title, and preparing and completing the mortgages ; and he did not, in the opinion of the court, communicate what he- did to his co-trustee in such a way as to enable- her to exercise her judgment upon the invest- ments, and make them her acts as well as his. own : — Held, that A. had undertaken to find proper investments, and that the widow had. joined in advancing the fund on the faith that the investments were proper ones which had been looked into by A., as solicitor ; that she- had been misled by him, and he had been guilty of negligence in his duty as a solicitor ; and that, as between A. and the widow, A. was. primarily liable for the breach of trust. Parting- ton, In re, Partington v. Allen, 57 L. T. 654 — Stirling, J. Directors — Breach of Trust — liability ot Executor.] — The directors of a company ad- vanced moneys of the company upon an un- authorised security, and two sums of 600Z. and 400Z. so lent were lost. The 600Z. formed part of a loan of 800L, and the 400L formed part of a loan of l,00OZ. which was granted by the- board of directors, and of which 400Z. was actually advanced and repaid, and a second400Z... was advanced and not repaid. In an action by the company against one of the directors who- had taken part in granting the loans, he was., held liable to pay the two sums of 600Z. and 400Z.. to the company, and, having paid them, he sued three of his co-directors for contribution. One- of the defendants was not present at the meeting- at which the loan of SOOi. was granted, and at which a cheque for the 800Z. was drawn, but he was present at a subsequent meeting at which the minutes of the former meeting were read and confirmed. The 800?. had been already paid to the borrower : — Held, that, whether the de- fendant would or would not have been liable to. the company, there was no equity to compel him to contribute to the plaintifi in respect of thft: 1879 TRUST AND TRUSTEE. 1880 ^001. Ramsldll v. Edwards, 31 Ch. D. 100 ; 55 L. J., Ch. 81 ; 53 L. T. 949 ; 34 W. B. 96— Pear- son, J. The same defendant was present at the meet- ing at which the loan of 1,000Z. was granted, Avhen he protested strongly against it. He was present at a subsequent meeting at which the minutes of the first meeting were read and con- firmed, and he then signed a cheque which was •drawn for the first 400Z.: — Held, that by signing the cheque he had adopted the whole loan of 1,OOOZ., and that he was therefore liable to con- tribute in respect of the second 400Z. which was lost. II. The third defendant died after the commence- Jneut of the action, and his administrator was then made a defendant : — Held, that the liability to contribute survived against the defendant's estate. Ih. 4. DISCRETION OF TRUSTEES. Trust for Benefit of Children — Authority to lay to Parent.] — A trust for the benefit of the ■children of A. with an aulhority to pay the trust funds over to their parent or guardian, does not •empower the trustees to hand over the trust funds to A., without exercising any discretion in respect of his children's interest. Gainsbornvgli {^EarV) V. Watcomle Terra Cotta Co., 54 L. J., Dh. 991 ; 53 L. T. 116— North, J. Trust for Maintenance of Children — Ability of lather to Maintain.] — J. B. M. having absolute power to dispose of property, devised it to her husband J. M. for life, in trust that he should ■" apply the same, or as much thereof as he should from time to time think proper, for or towards the maintenance and education, or otherwise, for the benefit of my son D. M., and shall and do invest the unapplied income, &c., in «uch stocks, &c., as the said J. M. in his absolute and uncontrolled discretion shall thinlc fit, with power to him at any time, and from time to time, to use and apply all or any part of such accumulated income for the benefit of my said son, or to pay the same over to him, as the said J. M. may from time to time think proper : " and after the death of J. M. she devised the propevt}', and all accumulations which should not have been applied or paid over in trust for his sou D. M. absolutely ; and if he should die in the lifetime of his father, J. M., to J. M. absolutely. After the testatrix's death, J. M. received the rents and maintained his son in a manner suit- able to his rank until his own death. Indepen- ■dently of the testatrix's property he was during his life of ability to maintain his son. J. M. having died, his administratrix in an action brought by D. M. claimed credit for a consider- able sum for the maintenance and education, &c., of the minor by J. M., during several years. It was sought, on behalf of the plaintiif, to have this credit disallowed on the ground that the iather, having been of sufficient ability to main- tain and educate his child, was not entitled to apply any of the trust funds for that purpose : Held, that J. M. was under the testatrix's will entitled (notwithstanding his own ability) to apply so much of the income of the trust funds as he should from time to time think proper for and towards the maintenance and education, «r otherwise for the benefit, of his son D. M. Malenmson v. Malcomson, 17 L. K., Ir. 69 — C.A. Child Assigning Interest.] — A testator directed his trustees, after the death of his wife, to apply the income of his estate " in and towards the maintenance, education, and advancement of my children in such manner as they shall deem most expedient until the youngest of my said children attains the age of twenty-one years," and on the happening of that event he directed them to divide his estate equally among all his children then living. The testator left four children, two of whom at the death of the widow in 1884 were of age, and the youngest was in his seventh year. After the decease of the widow the trustees paid each of the adult children one- fourth of the income, and applied the other two- fourths for the benefit of the minors equally till 1886. when J. S. C, the eldest son, made an ab- solute assignment for value of all his interest under the testator's will to H. The trustees declining to pay one-fourth of the income to H. he took out a summons to have the construction of the will determined : — Held, that no ctUd of the testator was entitled, prior to the attainment of tweuty-one by the youngest of the testator's children, to the payment of any part of the income, and that the trustees were entitled to apply the income for the maintenance, educa- tion, or advancement of the children, including J. S. C, in their absolute discretion ; that H. was entitled to no interest in the income except such moneys or property, if any, as might be paid or delivered or appropriated for payment or delivery by the trustees to J. S. C, and that the trustees could not pay or deliver to J. S. C. money or goods forming part of the income or purchased out of the income, lor that such moneys and goods so paid or delivered, or appro- priated to be paid or delivered, would pass by the assignment. Coleman, In re, Henry v. Strong, 39 Ch. D. 443 ; 58 L. J.. Ch. 226 ; 60 L. T. 127— C. A. To Advance Uoney — Payment into Court — Effect upon Discretion.] — A testator by his will devised and bequeathed his residuary estate to trustees, and gave thereout a legacy of 10,000^. to each of his five Jaughtei^s, and directed that the legacies should be held upon certain trusts for the benefit of his daughters, their husbands and children respectively, and he provided that, on the request of any of his daughters, it should be lawful for the trustees, if they should think fit, to advance to the husband or husbands of any one or more of his daughters, part of her legacy (not exceeding 5,000t) for the purpose of setung up the husbands in business, or otherwise promoting the advancement or benefit of his said daughter and her husband and family. The trustees paid the legacy of one of the daughters into court under the Trustee Relief Act. Appli- cation was now made for the advance of a sum of 3,00uZ. to the husband of the daughter whose share had been so paid in, for the purpose of furnishing him with a professional residence. The surviving trustee of the will consented to the advance being made : — Held, that the trus- tees, by paying into court, had terminated their discretion, and that the discretion being a per- sonal one could not be exercised by the court, and the advance could not therefore be made to 1881 TEUST AND TRUSTEE. 1882 tlie husband. Xettlefold's TiiisU, In re, 59 L. T. 315— North, J. SeeAshiumham's Trust, In re, post, col. 1901. Application of Income in Payment of Interest on Uoitgage.] — See Motehkys, In re, post, col. 1894. Power to Eelease.] — A marriage settlement executed in 1843 contained a proviso that i£ the husband should sui'vive the wife it should be lawful for the trustees at their option to with- hold the income from him, and to appropriate it as they might think most proper for the benefit of him or his children. After the death of the survivor of the husband and wife, the property was to go as the wife should by deed or will appoint : — Held, that the power, being in the nature of a trust, could not be released. Saul V. Pattiiison, 55 L. J.,Ch. 831 ; 54 L. T. 670 ; 34 W. E. 561— Pearson, J. Jurisdiction of Court to Interfere — Sale of Leaseholds.] — A testator gave leaseholds, some of which were held on short terms, to two trustees, one of whom was his wife, upon trust for his wife for life, and after her death upon trust that the whole should be sold, and the proceeds divided between four persons. And he authorised his trustees, provided that they should deem it advisable, to sell his short leaseholds and invest the proceeds and allow hi."! wife to receive the income during her life. The lease- holds were in a bad state of repair at the death of the testator ; the widow kept them up in the same state of repair, but declined to do more than this. The remaindermen applied for an order to oblige the tenant for life to maintain the leaseholds in such a state of repair as to satisfy the covenants in the leases, so as to avoid a forfeiture, or else to concur in selling the short leaseholds : — Held, that the court had no juris- diction to interfere with the discretion of the widow, who had then become surviving trustee, and to order her to exercise her power of selling the leaseholds. Tempest v. Lord Camoys (21 Ch. D. 576, n.) distinguished. Courtier, In re, Coles V. Courier, 34 Ch. D. 136 ; 56 L. J., Ch. 350 ; 55 L. T. 574 ; 35 W. E. 85 ; 51 J. P. 117 - C. A. Trust for Sale.] — ^Where real estate is . devised to trustees in trust for sale, with a dis- cretionary power to postpone the sale, the court will not interfere with a bonS, fide exercise of their discretion as to the time and mode of sale. Make, In re, Jones v. Blake, 29 Ch. D. 913 — C.A. Maintenance of Infant.] — A female infant was entitled contingently oii her attaining twenty-one, or marrying, to a fund of which her deceased mother had been tenant for life. The trustees had power to " apply all or any part" of the income (about 538?. a year) for her mainten- ance and education. On a summons in the matter of the infant, Bacon, V.-C, held that he had jurisdiction to control the discretion of the trustees as to the quantum to be allowed, and made an order on them to pay iOOl. a year to the father for her maintenance and education. The trustees appealed, and in answer to an inquiry by the court, stated their intention to allow 2501. to the father for her maintenance and education : — Held, that the order of the Vice-Chancellor was irregular, and must be dis- charged, the court having no jurisdiction on a summons in the matter of an infant to make any order for payment by trustees or other- peraons. Lofthouse, In re, 29 Ch. D. 921 ; 54 L. J., Ch., 1087 ; 53 L. T. 174 ; 33 W. E. 668— C.A. Whether the court could control the discretion of the trustees as to the amount to be allowed for maintenance and education, so long as such discretion was honestly exercised. Quaere. Ib^ 5. POWEES OF SALE. Jurisdiction of Court to Interfere with Dis- cretion.] — See cases, supra. Death of Parties to Concur.] — Real property was vested in trustees upon trust at the request of A. and B. and the survivor, and after their- death at discretion, to sell and hold the proceeds, upon trust for A. and B. successively for life, and then for the children equally. After the deatha of A. and B. there were three adult children : — Held, that the trust for sale was not spent, but was exerciseable by the trustees without the con- currence of the beneficiaries. Tweedie and Miles, In re, 27 Ch. D. 315 ; 54 L. J., Ch. 71 ; 33 W. R. 133 — Pearson, J. Power to increase Capital employed in Busi- ness — Mortgage to secure Business Debts.] — A testator, who died in 1866, devised and be- queathed all his real and personal estate upon trust for sale and conversion, and empowered his. trustees to carry on his business for such time as they should see fit, and to employ in the business, all the capital which might be invested therein at the time of his decease, and the profits thereof, and to increase or abridge the business and his capital therein, and generally to transact all matters and concerns respecting the business,, and to do all acts relative thereto, in the same manner as if they were absolutely entitled to the same. The personal estate of the testator com- prised nearly the whole of the capital of the business. His real estate consisted of the manu- factory and buildings upon which the business, was carried on, and for which he received a rent. The trustees carried on the business after th& testator's death in partnership with other per- sons ; but the firm ultimately became bankrupt.. In 1869 one of the trustees advanced to his co- trustees 2,000i., and the title-deeds relating to- the manufactory and premises were deposited with him for securing the repayment of the advance with interest. The money was applied for the purposes of the business. This trans-- action had not been disclosed. In January, 1882, an action was commenced for the adminis- tration of the testator's estate. In pursuance of an order made in that action, the business was sold in 1883. In September, 1882, certain of the beneficiaries mortgaged all their respective shares, under the will to secure the repayment to a banking company of 4,600?. The banking com- pany applied by petition for leave to intervene in the action, and obtained payment of their- debt. The question raised was, whether the trustees had power to make an equitable mort- gage of real estate, which did not form part of .1883 TRUST AND TRUSTEE. 1884 the assets employed in the businessj for the pur- ,poses of the business : — Held, that power to ■employ other assets in the business was conferred upon the trustees by the authority to increase the capital of the business ; that, as they- could have sold the real estate and- used the proceeds in- the business, they were not wrong in- using "the property itself to assist in carrying on the business ; and that the mortgage of- 1869 had priority over the mortgage of 1882. Held also, that, as the banking company were not creditors •of the testator, they had taken the -most con- venient course in applying to intervene by peti- tion. Dimmock, In re, Bimmooh v. Dimmoch, -62 L. T. 494— Kay, J. Extinguishment — Slsentailiug Deed,] — An estate was devised to uses to secure certain annuities, and subject thereto in strict settle- ment, with power to the trustees to sell at the request of the tenant for life under the will. The estate was disentailed and resettled (the existing' life estate being postponed to certain ■charges,' and the powers of the will being ■expressed to be kept alive) : — Held, that the trustees for sale and the tenant for life could make a good title: Wright and Marshall. In re, 28 Ch. D. 93 ; 54 L. J., Ch. 60 ; 51 L. T. 781; 33 W. K. 804— Pearson, J. Depreciatory Conditions of Sale.] — When trustees sell property with depreciatory oondi- tions, which render the sale liable to be im- peached by the oestuis que trustent, the trustees ■cannot maintain an action for specific perform- ance against the purchasers. Dunn v. Flood, 28 Ch. D. 586 ; 54 L. J.. Ch. 370 ; 52 L. T. 699 ; 33 W. R. 315— C. A. Trustees for sale sold by auction certain lease- holds. The conditions of sale provided that •every recital in any abstracted document should be conclusive evidence of the fact stated ; and that the lots were sold " subject to the existing tenancies, restrictive covenants, and all ease- ments and quit-rents (if any) affecting the same," and that the purchasers were to indemnify the vendors against the breach of any restrictive •covenants contained in the abstracted muni- ments of title. The sale was made also subject to- certain general conditions restricting the oc- ■ciipation of the land. The abstracted documents •contained no other restrictive covenants than those comprised in the general conditions ; and tlie vendors stated that they knew of no other xestrictive covenants, and of no existing tenan- ■cies, easements, or quit-rents affecting the pro- perty : — Held, that the condition as to existing tenancies and restrictive covenants was depre- •ciatory, and that the objection was a good de- fence to an action for specific performance by the trustees against a purchaser. Ih. Trustees for sale sold by auction certain lease- hold properties. One of the conditions of sale stipulated that no objection should be made if .any lease was an underlease, or that the pre- mises were held on the same lease with other property, or that the same were liable to superior rents or covenants. A purchaser objected to "this condition as depreciatory : — Held, that the •solicitor who prepared the conditions should have ascertained whether the leases were underleases ■or not ; that there should have been a state- ment of fact as to each lot, and not, as this was, ■a. statement which might- apply to any- of the lots ; and that this was a depreciatory condition, and ought not to have been inserted by the trustees. Rayner's Tirngbees and Greenaway, In re, 53 L. T. 495— Kay, J. Trustees for sale under a will put up for sale by atiotion certain lands in numerous small lots, with conditions providing that the title should commence with the conveyance to the testator ten years before : — Semble, that this condition, having regard to the number and smallness of the lots, was not unreasonable. Dunn v. Mood, 28 Ch. D. 586 ; 54 L. J., Ch. 370 ; 52 L. T. 699 ; 33 W. R. 315— C. A. Implied Power — Discretionary Power to iivest Estate.] — A testator devised and be- queathed the residue of his estate and effects to trustees upon certain trusts ; and he declared that it should be lawful for his trustees, at their absolute and uncontrolled discretion, to con- tinue the whole or any part of his estate in the firm in which he was a partner, or " to invest, re-invest, and lend any part " of Ms estate to the firm on such terms as the said trustee should, at such discretion as aforesaid, think proper ; — Held, that there was no implied power to sell the real estate. Holloway. In re, Molloway v. Holloway, 60 L. T. 46 ; 37 W. R. 77— North, J. Free from Portions.] — ^A tenant for life and a tenant in remainder having power under a settle- ment to appoint to uses, by a deed-poll indorsed on the settlement, appointed that the settlement should be read and construed as if the words " with any gross sum or sums (other than por- tions)" had been inserted after the word "charg- ■ing." The intention was to enable the- trustees of the settlement to sell any part of the land free from portions charged on the estate by the tenant for life : — Held, that the tenants for life and in remainder having power to- appoint to new uses, the deed-poll operated as a due ex- ercise of such power, and that therefore the trustees of the settlement had power to sell the lands, the subject of a certain contract, free from- portions. McAuUjf'e and Sal/our, In re, 50 L. T. 353— V.-C. B. Executor of Surviving Trustee — Conveyancing Act, s. 30.] — A testator appointed A. and B. executors and trustees of her will, and devised certain specified properties, and all other -estates or interests belonging to her in Ireland, to and to the use of A. and B., upon trust for sale of such part or parts thereof as might in their judgment be necessary for the discharge of debts and legacies, and as to the remainder thereof upon trust that they, or the survivors of them, should receive the rents, and pay them to A. for life, and after his death, sell the same and divide and pay the pro- ceeds to or among her nieces. A. died before the testatrix, B. survived her, and died without ex- ercising either trust for sale : — Held, that B.'s executors could not give a good title, notwith- standing the Conveyancing and Law of Property Act, 1881, s. 30. Ingleby and Norwich Union Insurance Company, In re, 13 L. B., Ir. 326 — M. R. Receipt of Purchase-Uoney — Power to dele- gate.] — On the sale of land by trustees -with power of sale, the purchasers made a requisition that either the vendors should attend personally to receive the purchase-money, or the purchase- 1885 TRUST AND TRUSTEE. 1886 money should be paid into a bank to the joint account of the vendors under a written direction, to be signed by them and given to the purchasers. The vendors refused to comply with the requisi- tion, alleging that it was inconvenient so to do, and proposed that one of them should attend and receive the purchase-money under a written direction to that effect, to be signed by them all : — Held, that the purchasers were entitled to insist upon their requisition. Flower v. Metro- politan Board ef Worlts, 27 Ch. D. 592 ; 53 L. J., Ch. 955 ; 51 L. T. 257; 32 W; K. 1011— Kay, J. «. DEALINGS BETWEEN TRUSTEE AND CESTUI QUE TEUST. Uortgage from Cestui que trust — Priority over Prior Incumbrance.] — A trustee who takes, without notice of a prior equitable incum- brance, a mortgage from his cestui que trust npon the property in which he holds the legal estate, is entitled to the advantage-given by that legal estate, and by virtue thereof obtains pri- ority for his mortgage over the prior incumbrance. Dictum of James, V.-C, in Phipps v. Lnvegrove (16 L. E., Eq. 80) approved and followed. JVew- man v. X'emman, 28 Ch. D. 674 ; 54 L. J., Ch. 598 ; 52 L, T. 422 ; 33 W. E. 505— North, J. Sale— Setting aside — Inadequate Price— Con- cealment of Value.] — Part of the estate of a testator consisted of two-thirds shares of the money to arise from the sale of certain messuages and hereditaments in Sydney, which during the life of the testator had, by deed in 1846, been vested in trustees there upon trust for sale, with power to suspend the sale and to manage and to lease the property. The testator, at the time of his.death in 1868, was supposed by the trustees of his will in Eng- land, and the beneficiaries, to be seised in fee simple of the two-thirds shares. As the property was expected to increase in value, all ttie Ijene- ficiaries agreed that the sale should be post- poned, and under the mistaken impression as to the nature of the testator's interest they, by deed in 1869, requested the trustees of the will to postpone the sale. In 1870 the sum of 10,0002. was offered for the entire property, but was re- iased. In 1875 one of the beneficiaries sold his one-fifth share of the testator's two-thirds for 1,000?. In March, 1880, A., another of the bene- ficiaries, being ill, and in pecuniary difiiculties. sold his one-fifth share to S., one of the trustees of the will, for 900Z. Shortly afterwards, both A. and S. died. In September, 1881, the entire property was sold for 30,000Z., and consequently A.'s share therein proved to be worth over 4,000l eighteen months after the sale of it to S. for 9004. In an action by A.'s wife against L., the executor of S., to set aside the sale of A.'s share to S., she did not aver that A. had been guilty of fraud in the transaction, or that A. was not fully aware of what he was doing at the time of the sale ; but she prayed for relief on the ground that S. stood in the position of trustee to A., who at the time of the sale was in very embar- lassed circumstances, as S. knew ; that the price was considerably below the real value of the share, as S. also knew ; and that A. had no independent advice in the transaction : — Held, that as the purchaser and vendor stood in the positions of trustee and cestui que trust, although the trustee was not the donee of a power of sale, his duty was to see that the property realised its full value ; and that the vendor being in embar- rassed circumstances to the knowledge of the trustee, and the price given by the trustee for the property being greatly inadequate, the relief asked for must be granted. Held, also, that L. must pay the costs of the action, and was not entitled to deduct them from the share sold to S, Plowrigkt v. Lambert, 52 L. T. 646-— Field, J. Purchase by Executor who has not Proved.] — A sale is not to be avoided merely because, when entered upon, the purchaser has the power to become trustee of the property purchased, as for instance by proving the will which relates thereto, though in point of fact he never does become such. Such a purchaser is under no disability, and in order to avoid such sale it must be shown that he ia fact used his power in such a way as to render it inequitable that the sale should be upheld. Clarh v. ClarTt, 9 App. Cas. 733 ; 53 L. J., P. C. 99— P. C. Sale to Stranger — Be-purchase by Trus- tee.] — The fact that a trustee has sold trust property in the hope of being able to re-purohase it for himself at a future time is not of itself a sufficient ground for setting aside the sale, where the price was not inadequate or the sale im- proper in other respects. In a case of suspicion of improper dealings with trust property, when the parties suspected and who might have been able to give a satisfactory explanation, are all dead, if a reasonable explanation of the evi- dence, consistent with the honesty of the suspected transaction, can be found, the court will adopt it rather than draw inferences from the evidence which are unfavourable to the good faith of those who are no longer able to explain their acts and written words. That a transaction was legal and honest is a presump- tion of law which is strengthened by lapse of time. , Postlethwaite, In re, Postlethwaite V. Rickman, 60 L. T. 514 ; 37 W. E. 200 ; 53 J. P. 357— C. A. Eeversing 59 L. T. 58 ; 36 W. E. 808— Kekewich, J. 7. BEEACH OF TRUST. Indemnity — Concurrence in Breach of Trust.] — A trustee who distributes a trust fund among strangers at the request of one of the bene- ficiaries, from whom he takes a covenant of indemnity, cannot afterwards recover under the coveuant for the loss of a beneficial interest, to which he has subsequently become entitled, in the fund. The effect of active concurrence by a person in a breach of trust upon a beneficial interest to which he subsequently becomes entitled in the trust fund considered. Euans v. Bemjon, 37 Ch. D. 329 ; 58 L. T. 700— C. A. A. was sole trustee of a fund held in trust for B. for life, then for Mrs. B. for life, then if she died in B.'s lifetime, in trust as she should appoint by will, and in default for her next of kin. A., at the request of B. and his wife, raised 5,000Z. out of the fund, paid 1,000Z. to eacb of the four adult daughters of C, and 1,000Z. to C. 1887 TEUST AND TEUSTEE. 1888 in trust for his infant daughter. B. covenanted with A. to indemnify him against " all conse- quences" of this distribution of the 5,000Z. Mrs. B. died in B.'s lifetime intestate, and her next of kin were A. and C. On the death of B., A.'s representative sued B.'s representative to compel him to replace the 5,000Z. : —Held, that the object of the covenant was only to indemnify A. from demands against him, as trustee, for breach of trust, and that it ought not to be con- strued as an undertaking to make good to him any loss which he, as a beneficiary, might sustain by the diminution of the trust fund ; and that since A., as next of kin, could not have made a claim against himself as trustee in respect of the breach of trust, there was no claim against A.'s estate in respect of which his representative could claim indemnity from B.'s estate so far as regarded A.'s interest as one of the next of kin ; that C, having actively concurred in the distri- bution, could not have made any claim against A. or his estate in respect of it, even if he had not known, as the court was satisfied he did know, that he had a possible interest in the trust fund, and that the distribution of it was a breach of trust ; and, therefore, that as regarded C.'s interest as one of the next of kin, there was no claim against B.'s estate under the covenant. lb. Where a cestui que trust, who is party to a breach of trust, is a married woman, and the trustees claim a right of retainer against her life interest in the settled funds to indemnify them against their breach of trust, they are bound to show that she acted for herself in the breach of trust, and was fully informed of the state of the case. Sawyer v. Sawyer, 28 Ch. D. 59.5 ; 54 L. J., Ch. ii-t ; 52 L. T. 292 ; 33 W. K. 403— C. A. Belation between Co-trustees.] — The relation between co-trustees in regard to the trust funds in their charge cannot be considered as that of creditor and debtor. Taylor, Ex parte, Gold- miid. In re, 18 Q. B. D. 295 ; 56 L. J., Q. B. 195 ; 35 W. E. 148— C. A. Bight of Action by Trustee.] — A trust fund, with the concurrence of the trustees and in breach of the trust, was invested in erecting three houses on ground held under a lease to S., the tenant for life of the fund. One of the trustees brought an action against S. and the other trustee for a restoration of the fund by sale of the houses. The court ordered S. to bring the trust fund into court, or, in default, a sale of the houses, holding that a trustee may follow property in which a trust fund has been wrongly invested, though he has actively con- curred in the breach of trust. The costs of an action for that purpose were decreed to the plain- tiff trustee on the facts of the case. Carson v. Sloane, 13 L. E., Ir. 139— M. R. Fraud of one Trustee — Purchaser for Value •without notice.] — C, trustee with the plaintiff of a will, and also trustee with the defendant of a settlement, having misappropriated a portion of the settlement fund, applied an equal portion of the will fund in the purchase of stock, whioli he transferred into the names of himself and the defendant. The plaintiif and defendant were both innocent of C.'s fraud, and the defendant and the cestuis que trusts under the settlement | had no notice that the stock was purchased with part of the will fund. C. died insolvent. In an action by the plaintiff to compel the defendant to transfer the stock to him :— Held, that the defendant having by accepting the transfer of the stock given up his right to sue C. for his debt to the trust, was entitled to be treated as a purchaser for value without notice, and conse- quently to retain the stock as part of the settle- ment fund. Taylor v. JBlakeloch, 32 Ch. D. 560 ;. 56 L. J., Ch. 390 ; 55 L. T. 8— C. A. Affirming- 34 W. R. 175— V.-C. B. Character in which Plaintiff Sues — Acqui- escence.] — Under a settlement certain funds were held by trustees upon trust for the issue of L. S. in such manner as she should by will appoint. L. S., by her will, appointed the funds, to trustees — as to two-fifths, upon trust to pay the income to her son until he should attain the. age of forty years, and when and as soon as he: should attain that age she directed that the trust premises should be held in trust for her said son, his executors and administrators, and provided that if her said son should sell, assign,, or otherwise part with his said share, the appointment in his favour should be void, and the said share should be held upon the trusts- declared of the remaining three-fifth parts for the benefit of her daughter. The son died under forty without having forfeited his interest. N.,. the surviving trustee of the will of L. S., and who was also co-trustee with L. of the original settlement, got possession of the two-fifths and misappropriated it, and the beneficiaries under the will of the son obtained judgment for th& amount against B., who was the surviving- executor and trustee of the son's will, on the ground of his negligence and wilful default in not getting in the trust fund. B. having died., his executor brought this action against L. ani N., seeking a declaration that they were jointly and severally liable to replace the amount so found due from B. N. had become bankrupt : — Held, that L. was not liable, on the ground that the plaintiff must be treated as representing B. ; and it appearing upon the evidence that B. had, in 1872, treated N. as solely accountable to him for the two-fifths, and had done nothing to recover the fund, tlie plaintiff was barred by the- delay and acquiescence of B. Scotney v. Lomer, 31 Ch. D. 380 ; 53 L. J., Ch. 443 ; 54 L. T. 194 ; 34 W. R. 407— C. A. Bankrupt Trustee entitled to Equitable Inte- rest.] — A testator devised real estate to his nine children, nominatira as tenants in common, giving a power to three of them to sell the whole to avoid the difliculties of partition. W., one of the three, conducted certain sales under the power, retained more than his share of the purchase-moneys, and went into liquidation. Further sales were effected, and out of the pro- ceeds a further sum was paid to W.'s trustees in. liquidation in respect of, and in excess of, his share : — Held, that all purchase-moneys received by the trustees were impressed with a trust under the will, and that 'W.'s equitable interest therein was liable to recoup the other beneficiaries. Brown, In re, DixoR v. Brown, 32 Ch. D. 597 ; 55 L. J., Ch. 556 ; 54 L. T. 789— Kay, J. In other Cases.] — See yarious sub-heads. 1889 TKUST AND TEUSTEE. 1890 8. LIABILITY FOE ACTS OF AGENTS. Ordinary Scope of Business.] — The rule that trustees, acting according to the ordinary course of business, and employing agents as prudent men of business would do on their own behalf, are not liable for the default of the agent so employed, is subject to the limitation that the agent must not be employed out of the ordinary scope of his business. Fry v. Tapson, 28 Ch. D. 568 ; 54 L. J., Ch. 22i ; 51 L. T. 326 ; 33 W. E. 113— Kay, J. ■ Stockbroker.] — A trustee investing trust funds is justified in employing a broker to pro- care securities authorised by the trust and in paying the purchase-money to the broker, if he follows the usual and regular course of business adopted by ordinary prudent men in making such investments. Speight v. Gaunt, 9 App. Cas. 1 ; 53 L. J., Ch. 419 ; 50 L. T. 330 ; 32 VV. E. 435 ; 48 J. P. 84— H. L. (B.). A broker employed by a trustee to buy securities of municipal corporations authorised by the trust, gave the trustee a bought note which purported to be subject to the rules of the London Stock Exchange, and obtained the purchase-money from the trustee upon the representation that it was payable the next day, which was the next account day on the London Exchange. The broker never procured the securities, but appropriated the money to his own use and finally became insolvent. Some of the securities were procurable only from the corporations direct, and were not bought and sold in the market, and there was evidence that the form of the bought note would have sug- gested to some experts that the loans were to be direct to the corporations ; but there was nothing calculated to excite suspicion in the mind of the trustee or of an ordinary prudent man of busi- ness ; and such payment to a broker was in accordance with the usual course of business in purchases on the London Exchange : — Held (Lord Fitzgerald) doubting, that the trustee was not liable to the cestuis que trustent for the loss of the trust funds. Ih. Semble, by the Earl of Selborne, L. C, that if the broker had represented to the trustee that the contracts were with the corporations for loans direct to them from the trustee, he would not have been justified in paying the money to the broker, for which in such a case there would have been no moral necessity or sufficient prac- tical reason. li. A trustee must, in order to escape liability for a, loss of the trust property, show that in connexion with the transaction in which the loss occurred he acted not only in the ordinary mode of business, but also in the mode in which a prudent man of business would act in such a transaction. Bulloch v. Bullooli, 56 L. J., Ch. 221 ; 55 L. T. 703— Kekewich, J. B., one of the trustees of a marriage settlement, was employed by his acting co-trustee to make a change of investment of part of the trust property ; but although he sent to his acting co- trustee contract-notes for the new investments, the latter were never completed, and the moneys were misappropriated by a third party. B.'s co- trustees made no inquiries at all for the securities to which the contract-notes related for over eighteen months, and made no efficient inquiries until three years after the transaction had taken place ; and when the loss was discovered B. had shortly before become bankrupt, having up to within a few months of that time been in good credit : — Held, that B.'s co-trustees were liable for the loss, having been guilty of negligence in not prosecuting early inquiries, which would have resulted in information upon which they might have recovered the trust moneys from B. Speight V. Gaunt (9 App. Cas. 1) distinguished. li. Money allowed to remain in Solicitor's Hands.] — Trustees are not justified in allowing trust money to get into the hands of a solicitor, or in allowing him to hold the securities upon which the trust fund is invested ; and the law is the same where the estate is being administered by the court. Dewar, In re, Dewar v. Sroolte, 54 L. J., Ch. 830 ; 52 L. T. 489 ; 33 W. E. 497— Kay, J. Trustees of an estate which was being ad- ministered by the court employed a solicitor to manage the trust estate, and allowed him to receive the trust moneys for the purpose of in- vestment. The solicitor represented that he had duly made investments, and he rendered periodical accounts to the trustees purporting to show such investments, and paid the interest upon them. He had, in fact, never made any Investments, but had misappropriated the money, and ultimately he filed a liquidation petition, and a part of the trust fund was thus lost : — Held, that the trustees were liable to make good the loss to the trust estate. lb. Agent employed to Collect Money — Onns proband!.] — A common order having been made for the administration of a testator's estate, the district registrar by his certificate found the outstanding personal estate to consist in part of book debts amounting nominally to 29U., as to 113?. part of which he certified that it repre- sented a portion of book debts which the execu- tors had employed H. to collect, and for which H. had not accounted, and had claimed to deduct bbl. for remuneration, but that 251. was enough. The certificate went on to say that H. had gone into liquidation, and that no part of the 113?. was likely to be recovered. No application was made to vary this certificate. It appeared that H. had collected in all 168?., had paid to the executors in April, May, and June, 1880, sums amounting in all to 55?., and had gone on collecting without making any further payment to the executors till July, 1881, when a receiver was appointed in the action, but it did not appear when he became insolvent, nor at what times the moneys received came to his hands : — Held, that where an executor or trustee employs an agent to collect money under circumstances which make snch employment proper, and the money collected is lost by the agent's insolvency, the burden of proof is not on the executor to shew that the loss was not attributable to his own default, but on the persons seeking to charge him to prove that it was. Brier, In re. Brier V. Bvison, 26 Ch. D. 238 ; 51 L. T. 133— C. A. 9. GETTING IN TRUST FUNDS. Duty to enforce Payment.] — It is the duty of trustees to press for the payment of the trust funds to them, and if they are not paid within a 3 P 1891 TEUST AND TEUSTEE. 1892 reasonable time, to enforce payment by legal proceedings. And it is especially their duty to take action promptly if by the terms of the trust payment has been deferred to the expira- tion of a specified time. The only excuse for not taking action to enforce payment is a well- founded belief on the part of the trustees that such action would be fruitless ; and the burden of proving the grounds of such belief is on the trustees. Brogden, In re, Billing v. Brogden, 38 Ch. D. 646 ; 59 L. T. 650 ; 37 "W. E. 84— C. A. Property not Lost by Trustees — Indem- nity.] — Trustees are not bound at their own expense to take proceedings for the recovery of trust property not lost by their own default. Tudlall V. Medlicott, 59 L. T. 370 ; 36 W. R. 886 ; 52 J. P. 659— Kekewich, J. A testator by his will left certain freehold property to trustees in trust for certain benefi- ciaries ; a short time after the testator's death a mortgage of the devised property was discovered, but was suspected by the trustees to be a forgery. They had not funds with which to institute pro- ceedings : — Held, that they were not bound to take proceedings at their own expense to recover the trust estate. II). Loss by Non-conversion — Form of Order.] — Where there has been a loss to the trust estate by reason of a non-conversion of a security forming part of the trust property, but the trustees allege that they could at no time have realised the full value of the security, they will be allowed the benefit of an inquiry to show the actual amount which would have been realised by a conversion at the proper time, and their liability will be limited accordingly. Gainsiorowgh (^EarV) v. Watoombe Terra Cotta Company, 5i L. J., Ch. 991 ; 63 L. T. lie- North, J. Deposit at Bank — Delay — Failure of Bank.] — A will appointing trustees only authorised them to invest in parliamentary stocks or funds, or in freehold, copyhold, or leasehold hereditaments. The will contained a provision that no trustee should be answerable for any banker, broker, or other person in whose hands any moneys might be deposited for safe custody or otherwise. The trustees left the sum of 500Z. on deposit at a bank, by way of interim investment, whilst they looked for a mortgage, for fourteen months, when the bank failed. Upon the question whether the trustees were liable for the loss thereby occasioned : —Held, that fourteen months was too long for the trustees to leave trust money on deposit at a bank ; that if after six months they could not get a mortgage, they ought to have invested the money in Consols ; that, from the moment they left it too long on deposit, they became responsible for the conse- quences of their default, and were therefore liable for the sum lost to the trust estate. Cann v. Cann, 51 L. T. 770 ; 33 W. K. 40— Kay, J. 10. MANAGEMENT OF TEUST— CAREYING ON BUSINESS. Solicitor Trustee — Eigbt to Costs.] —/Sec SOLICITOK, VI., 2, d. Trust to receive Eents and manage Estate — Salary.]— Where estates were devised to a near relative and a family solicitor until B. attained the age of twenty-eight years, upon truf* ™' receive the rents and manage the estate, and the will empowered any trustee being a solicitor to charge and be paid for all business done by him as a solicitor in respect of such estate, and a legacy of lOOZ. was given to each trustee, and the trustees managed the estates consisting of 2,000 acres partly unlet for fifteen years, paying themselves a salary of lOOZ. a year each for the trouble of such management, amounting in all to 3,000Z. ; on an originating summons on behalf of the tenant for life and the infant remamder- man :— Held, that such payments of 200Z. a year- were unauthorised by the will; the trustees- might at any time have applied to the court, but they neglected to do so ; that it was not a case to follow the course adopted in Marshall v. HoUoway (2 Sw. 432), where an inquiry was directed as to whether any and what sum should be allowed to the trustees for their trouble. The salary was disallowed, and an order made for payment into court, without interest, within six months. Bedingfield, In re, Bedingfield v. D'Bije, 57 L. T. 332— Kay, J, See also Freeman'g- Settlement Trusts, In re, post, col. 1918. Carrying on Business — Advances — Bight of Creditor against Trust Funds.] — By a marriage settlement, a lunatic asylum was assigned to trustees on trust, at the request of the husband and wife, to sell and stand possessed of the pro- ceeds of the sale for the benefit of the wife and children ; but the trustees were to allow the husband to carry on the business of the asylum without paying any rent, but paying certain premiums and other moneys. The husband became bankrupt, and thereupon the surviving trustee of the settlement entered into possession of the asylum and carried on the business until the asylum was sold for a large sum of money. A tradesman had supplied the trustee with goods for the use of the asylum, and brought an action claiming payment out of the trust funds of the settlement : — Held, that, whether the trustee would or would not have been entitled to be indemnified for moneys advanced by him for the purposes of the asylum, the tradesman had no right to recover his debt out of the trust funds, no special part of the estate having been appro- priated for carrying on the asylum. Garland, Ex parte (10 Ves. 110) considered. Strlcldand V. Symons, 26 Ch. D. 245 ; 53 L. J., Ch. 582 ; 51 L. T. 406 ; 32 W. R. 889— C. A. ■ Increase of Capital — Mortgage.] — See Bimmock, In re, ante, col. 1883. 11. PAYMENTS TO TRUSTEES. Income — Form of Order.] — It is not desirable as a general rule to order income to be paid to trustees, " or either of them," according to the form in Seton on Decrees, p. 88, s. 4, No. 2. Clinton, In re (8 W. R. 492),'not followed. Can; In re, Can- v. Can; 36 W. E. 688— Kekewich, J. To Co-trustee — Maintenance of Infant— Vouch- ing Items of Expenditure.]— H. and C. were trustees and executors of a will, and guardians of the testator's daughters. The daughters 1893 TEUST AND TEUSTEE. 1894 during their infancy were maintained by C, and H. allowed him to receive the income for that purpose. After they attained majority judgment was given for administration of the testator's estate, in which the usual accounts of the personal estate were directed, and an inquiry how and by whom each of the daughters was maintained during infancy, and what was proper to be allowed and to whom out of the income of her share for her maintenance and education. A dispute having arisen in taking the accounts and inquiry, H. applied for a declaration that the receipts by C. of the income of the shares of the daughters for maintenance were a good discharge to H., and that H. was not to be called upon to produce vouchers in respect of the particular manner in which the income was applied. Kay, J., made an order expressing the opinion of the court that the accounts of the trustees should be taken as directed by the judgment as between guardian and ward, and ordering H. to pay the costs of the application : — Held, on appeal, that H., as trustee, was not discharged by mere evidence of payment of the income to C, his co- guardian, but that under the inquiry H. was not bound to vouch the items of expenditure ; and if it was shown that C. had properly maintained and educated the children, the sum proper for that purpose would be allowed against the balance found due on the account, without vouching the details of the application. Evans, In re, Welch v. Oliannell, 26 Ch. D. 58; 53 L. J., Gh. 709 ; 51 L. T. 175 ; 32 W. R. 736— C. A. Sale by Trustees — Farchase-money. ] — See Flower v. Metropolitan Board of WorliS, ante, col. 1885. Salary.] — See Bedingfieli, In re, supra. 12. PRESERVATION AND REPAIR OF PREMISES. Power as to Repair.] — By his will a testator gave to his trustees his house and all the furni- ture, &c., therein at the time of his death in trust to permit B. to use and occupy the house and furniture for and during her life, free of all rent or compensation for the same, and free from all obligation to repair or insure (which he expressly directed his trustees to do), and free of all rates, taxes and other outgoings (all of which he directed his trustees to discharge) ; and after the 4eath of B., the house and furniture were to fall into and form part of his residuary estate : — Held, that the trustees were not bound to do more than repair and insure the premises, and pay the rates, taxes, tithes, and other outgoings during B.'s life ; but that, if in their opinion it should be necessary to do more than this to prevent the property from becoming deteriorated, their proper course would be to come to the court for direction. Colyer, In re, Millikm v. Snelling, 55 L. T. 344— Kay, J. A testatrix gave "all my real and personal estate " to trustees " upon trust at their discretion to sell all such parts thereof as shall not consist of money," and out of the produce to pay her debts and funeral and testamentary expenses, and invest the residue, "and shall stand pos- sessed of such real and personal estate, moneys, and securities " upon trust " to pay the rents, interest, and dividends and annual produce thereof" to T. during her life, with a clause of forfeiture on alienation, and after the decease of T. the testatrix devised and bequeathed "my said real and personal estate and the securities on which the same may bo invested unto and to the use of V. C, his heirs, executors,, adminis- trator, and assigns for ever, according to the nature and quality thereof respectively." At her death she was entitled in fee to the P. estate, which was unincumbered. Some time after her death a remainder in fee to which she was entitled in the B. estate, which was subject tO' mortgages made by prior owners and was out of repair, fell into possession, and its income was only sufficient to pay the interest on the mort- gages. The trustees took out a summons for directions as to interest and repairs. The tenant for life contended that she could disclaim the B. estate ; the remainderman contended that the rents of the P. estate were liable for the interest on the mortgages of the B. estate and for- repairs of that estate : — Held, that the will did not create a trust for conversion, but only gave ai power of sale ; that no power of management and applying rents in repairs was conferred on the trustees ; that T. as equitable tenant for life was not bound to repair ; and that the rents of the P. estate could not be applied by the trustees in repairing the B. estate, though the court, if applied to, could sanction the doing such repairs as were expedient on terms which would be equitable as between the tenant for life and the remainderman. Held, further, that under a trust of this nature the trustees had a discre- tionary power to apply, if expedient, the income of the unincumbered estate in paying such part of the interest on the mortgages as the rents of the mortgaged estate were insufficient to pay, but whether in case of their doing so there would not be equities to Ije adjusted between the tenant for life and the remainderman, quaere. Hotchliijs, In re, Frelie v. Calmady, 32 Ch. D. 408 ; 55 L. J., Ch. 545 ; 55 L. T. 110 ; 34 W. R. 569— C. A. Action against Tenant for Life for Non-repair.} — A testator gave his real estate to trustees upon trust for his widow for life, with remainder over, in events which happened, to A. for life, &c. The will contained a direction that each tenant for life should during such estate keep the buildings thereon in substantial repair, and if any such person should neglect to effect such repairs within six months after being requested so to do by the trustees, the trustees should be at liberty ■ to effect such repairs. The widow of the testator was in possession of the premises till her death, and she had omitted to repair the buildings. A claim was carried in against her estate in an administration action, in respect of the omission to repair, the claimants being the trustees of the will, and the then equitable tenant for life. The claim was resisted, on the ground that the right to recover, if any, was in the remainder- man, and that therefore the claim was preferred by the wrong parties : — Held, that as the trustees had an interest in protecting the ultimate equit- able estate, the claim was properly brought by them. WilUames, In re, Andrew v. WilUames, 54 L. T. 105— C. A. Jurisdiction of Court to order Expenditure of 3 P 2 1895 TRUST AND TRUSTEE. 1896 TruBt Honey for Preservation of Estate.]— fe ante, cols. 1610, 1611. 13. PAYMENT OP COSTS. Charge on Capital and Income, when properly Incurred.] — The trustees of a freehold estate, of which the plaintiff was equitable tenant for life under a will, brought actions under the advice of counsel against two persons for interfering with the property, and compromised them be- fore trial. The plaintifE had no notice of the proceedings, but had some time previously warned the trustees, on the occasion of an injury done by persons other than the defen- dants to these actions, that he should hold them liable if they did not take all necessary steps to protect the property. In December, 1881, the plaiutifE applied to the trustees for the rents accrued since May, 1880. The trustees' solicitor answered, stating the amount of the rents re- ceived, and saying that it was less than the costs incurred by the trustees in the action, and that they were out of pocket. A correspondence ensued, in the course of which the trustees ex- pressed their willingness to concur in any ar- rangement for raising the costs out of the estate, but the plaintiff insisted on having the rents paid to him irrespective of any arrangement for raising the costs, and brought his action to enforce payment. The Vioe-Chanoellor of the Lancaster Court made an order, declaring that as the actions were brought without the knowledge or consent of the plaintiff, the costs were not chargeable against the income. And the court "being of opinion that the actions were com- menced under the advice of counsel," ordered the trustees' costs of them to be raised and paid out of the estate, but ordered the trustees to pay the plaintiff his costs of the present action up to the hearing. The plaintiff appealed against the direction to raise the costs of the former actions out of the estate, and the trustees from the order as to the costs of the present action : — Held, on appeal, that the direction to raise the costs of the trustees of the old actions out of the estate ought to be afl&rmed, for that the actions appeared to have been brought bonS, fide and to have been beneficial to the estate, but that the reason given 'n the decree for allowing them ought to be varied, as that result did not necessarily follow from their having been commenced under the advice of counsel. But held, that the order on the trustees to pay costs must be reversed, and directions given for raising their costs of this action out of the estate, for that the costs of trustees properly incurred in the administration of the trust are a first charge on both the capital and income of the trust estate, and that the trus. tees were not bound to part with the income till their costs had been otherwise provided for, and they therefore had been guilty of no misconduct. Stott V. Milne, 25 Oh. D. 710 ; 50 L. T. 742— C. A. Priority of Trustees.] — Trustees in an adminis- tration action brought by their cestuis que trustent, where an order has been made for pay- ment of costs out of the estate, and it appears probable that the estate will not be sufficient to pay all their costs in full, are entitled to an order directing the payment of their costs, charges, and expenses in priority to the costs of all other parties to the action. Doddi v. Twke, 25 Ch. D. 617 ; 53 L. J., Ch. 598 ; 50 L. T. 320 ; 32 W. E. 424— V.-C. B. Attempt to uphold Settlement — Lien on Fund.]— Trustees of a settlement, originally valid, but which becomes void on the bank- ruptcy of the settlor, are entitled as against the trustee in bankruptcy to a lieu on the trust property for expenses properly incurred in the performance of their duty as trustees. Official Receiver, Ex parte, HoUen, In re, 20 Q. B. D. 43 ; 57 i. J., Q. B. 47 ; 58 L. T. 118 ; 36 W. E. 189— D. The settlor of a post-nuptial settlement brought an action to set it aside. The trustees of the settlement defended the action, which was dismissed with costs, but the costs were not paid. — The settlor became bankrupt within two years after the date of the settlement, which accord- ingly became void under s. 47 of the Bankruptcy Act, 1883 :— Held, that, as the settlement was originally valid, and as the costs of the action had been incurred by the trustees in the per- formance of their duty as trustees, they were entitled, as against the official receiver, to a Hen on the trust fund for such costs. li. In an action against the trustees of a volun- tary settlement for rectification : — Held, that as they did not set up any claim, but represented absent parties, who could not be ascertained, it was their duty to al.tempt to maintain the settlement, and therefore the costs of the trustees were declared to be a charge on the trust estate. James y. Cimchman, 29 Ch. D. 212 ; 54 L. J., Ch. 838 ; 52 L. T. 344 ; 33 W. E. 452 —North, J. As between Solicitor and Client] — One of two executors and trustees commenced an action against the other for the administration of the estate, and a decree was made. There was no allegation of any misconduct on the part of the defendant On the action coming on for further consideration, the court gave the plaintiff his costs as between solicitor and client, but gave the defendant costs only as between party and party, holding that two sets of costs as between solicitor and client ought not to be allowed to the trus- tees : — Held, on appeal, that a trustee is entitled to costs as between solicitor and client in an administration action, unless a case of miscon- duct is made out against him, and that the defendant must have costs as between solicitor and client. Love, In re. Hill v. Spwrgeon, 29 Ch. D. 348 ; 54 L. J., Ch. 816 ; 52 L. T. 398 ; 33 W. E. 449— C. A. Exercise of Powers without sanction of Court.] — On the hearing on further consideration of an administration action, an order was made by which all the questions raised were practically disposed of, but liberty to apply was reserved. Subsequently the trustees of the will of the testa- tor in the action, in exercise of the powers under the will, and with the consent of the tenant for life, sold laud forming part of the estate, and carried out other transactions, without applying for or obtaining any sanction of the court : — Held, that the trustees were entitled to their proper costs of carrying out such transactions. Maiisel, In re,'Rhodes v. Jenkins, 54 L. J., Ch. 883 ; 52 L. T. 806 ; 33 W. E. 727— Pearson, J. 1897 TEUST AND TRUSTEE. 1898 Action to set aside Sale by Cestui que trust to Trustee.] — See I'loiortght v. Lambert, ante, col. 1886. New Trustees liable to pay Costs preliminary to Appointment — Costs of old Trustees — Costs of Donee of Power.] — In a partition action an order was made directing the taxation of the costs of the parties, including in the eosts of the defen- dants, the trustees, "one moiety of any costs, charges, and expenses properly incurred by them as trustees of the will of the testator beyond their costs" of the action. The taxing-master disallowed the costs of former trustees, who were dead, paid to the executor of the survivor in consideration of his transferring the trust property, also costs of examining into the state of the trust property, and the validity of the power, before the appointment, also costs of the donee of the power in appointing. On summons to review taxation : — Held, that the trustees were bound to pay the costs of the old trustees properly incurred ; that the burden of proof that the payments were wrong lay on the ob- jectors : — Held, also, that it was not only the right, but the duty, of the new trustees to see what the estate consisted of, and that the power was properly exercised ; also that they were entitled to the costs of the donee of the power which they had paid. The trustees were there- fore on principle entitled to the costs disallowed, subject to the discretion of the taxing-master as to items. Haney v. OUiver, 57 L. T. 239 — Kay, J. Defaulting Trustee — Payment into Court.] — Where in a Chancery action money has been found due from a trustee, the proper form of order is to direct the money due to be paid into court before the trustee in default is allowed to receive his costs out of the trust estate, or even to receive any share in the trust estate to which he is entitled. Staniar v. Uvans, 34 Ch. D. 470 ; 56 L. J., Ch. 581 ; 56 L. T. 87 ; 35 W. R. 286— North, J. A. and B., executors and trustees of a testator, set apart a fund to answer an annuity bequeathed to the plaintiff. A. and B. committed a breach of trust by means whereof the fund came into the name of B. alone, who misappropriated it. A. died, and by his will gave a legacy to B. and J. on certain trusts. B. having become bank- rupt, in an action by the annuitant, J., was ordered to refund the trust legacy in his hands, which was insufficient to answer the breach of trust committed by his testator : — Held, that neither J. nor the trustee in bankruptcy of B. was entitled to have his costs out of the fund before it was paid into court. Knott, In re, Sax V. Palmer, 56 L. J., Ch. 318 ; 56 L. T. 161 : 35 W. E. 302— Stirling, J. Eefusal to Transfer Trust Funds.] — A sur- viving trustee who, without sufficient reason, de- clined to transfer trust funds to new trustees, duly appointed under a power in the instrument creating the trust, was ordered to pay the costs of an action to compel such transfer. Coppinger V. SlieUeton, 15 L. R., Ir. 461— V.-C. Depriving of — Misconduct.] — A trustee is not, in the absence of misconduct, to be deprived of costs by reason of his having invested in what is not, strictly speaking, an authorised security, if at the time of the judgment the fund has been replaced without loss. Peacooh v. Oolling, 54 L. J., Ch. 743 ; 53 L. T. 620 ; 33 W. E. 528— C.A. Costs out of Trust Fund — Tacit Obstruction to Cestui que trust.]— The executors of the sole executor of a deceased sole trustee whose sole executor had never acted in the trust were applied to in April, 1883, to take steps to enable the tenant for life of a small sum of stock stand- ing in the name of the deceased trustee to receive the dividends. In May, 1883, the executors handed to the solicitor of the tenant for life the probate of their testator's will, that he might produce it at the Bank of England, which he did. After some correspondence, in the course of which the executors asked for evidence of the title of the cestuis que trust, which did not appear to have been produced, the solicitor of the tenant for life, about the end of May, sent a power of attorney to be executed by the exe- cutors, to enable her to receive the dividends. The executors did not execute or return the power. In July the solicitor of the tenant for life applied to the executors to appoint new trustees under the Conveyancing and Law of Property Act, 1881, to which the executors re- plied, stating their ignorance of the title of the cestuis que trust. Ultimately, in November, 1883, the cestuis que trust presented a petition for the appointment of new trustees and a vest- ing order : — Held, that the conduct of the exe- cutors, who appeared to have accepted the trust by taking a transfer of the stock into their own names, had been vexatious, and that they must pay the costs which would have been occasioned by a petition simply asking for payment of divi- dends to the tenant for life, and that they could not be allowed any costs out of the fund. But held, on appeal, that as the cestuis que trust had not taken proper steps to satisfy the executors as to their title, the executors had not been guilty of any such misconduct as is necessary to deprive a trustee of his right to costs out of the trust fund, and that they must have their costs below, but that as the Court of Appeal was not satisfied with their conduct, they ought to have no costs of their appeal. Knight^s Trusts or ICnight's Will, In re, 26 Ch. D. 82 ; 50 L. T. 550'; 32 W. E. 417— C. A. Eeversing 53 L. J., Ch. 223— Pearson, J. Solicitor Trustee, Eights of.] — See Solicitor, VI., 2, d. Bight to set off Debt due against Costs.] — Where a person at the time of an order being made for payment of his costs by trustees on a petition in the matter of a trust is indebted to the trust estate, although the amount is not then ascertained, he cannot get any of such costs until he has paid the amount due from him to the trust, and the trustees, therefore, can set off the costs payable by them against the amount due from him. Harrald, In re, Wilde v. Wal- ford, 53 L. J., Ch. 505 ; 51 L. T. 441— C. A. 14. NOTICE TO TEUSTEES. New Trustees— Notice to original Trustees- Constructive Notice.] — Persons appointed new trustees under a will or settlement are bound to 1899 TEUST AND TEUSTEE. 1900 inquire what the trust property consists of, and what the trusts are, and to look into the trust documents to see what incumbrances their pre- decessors had notice of. But if there was no- thing among the trust documents which would have given them notice of an incumbrance, they will not be held liable for loss arising from their ignorance of it, even though they have in fact omitted to look into those documents. Mallows v. Uoyd, 39 Ch. D. 686 ; 58 L. J., Ch. 105 ; 59 li. T. 603 ; 37 W. E. 12— Kekewich, J. 15. PEODUCTION OF TITLE-DEEDS. To Cestui que trust.] — PrimS, facie, and in the absence of any special circumstances, a cestui que trust, even though he be only inter- ested in the proceeds of the sale of land, is en- titled to the production and inspection of all title-deeds and other documents relating to the trust estate which are in the possession of the trustees. One cestui que trust can enforce this right against the trustees, without bringing before the court the other persons beneficially interested in the property when they have no higher right than himself. Cowin, In re, Cowin V. Gramtt, 33 Ch. D. 179 ; 56 L. J., Ch. 78 ; 84 W. E. 735— North, J. ae. OTHEE PEOCEEDINGS BY AND AGAINST. Account of Moneys received by Trustee during Infancy.] — In an action against trustees of a settlement, asking (inter alia) that each should furnish and vouch their accounts of the trust de- clared thereby, one of the trustees (E.) had only recently attained twenty-one. Bacon, V.-C, directed that in taking the account, the same was, as regards E., to be limited to any moneys and properties received by Mm since he attained twenty-one. On appeal, the court, without then determining the liability of such infant trustee, held that the proper form of decree was to order the account against the adult trustee in the usual form, directing an inquiry whether all or any and what parts of the trust property had come to the ihands of E., and what had been his dealings and transactions in respect of the same, and as to the 'dates of, and circumstances attending, such re- vest the manor in the new trustees "for the same estate as C. would have had if he had been alive," and reference was made to the form in Seton (vol. 1, p. 539) :— Held, that no foim ought to be adopted in which the heir was not named, except in cases where it was in fact, inconvenient or impossible to identify the heir ; and that the court, on a broad view, ought to regard the fact that the estate might have been dealt with, since the death of the last surviving 1906 TRUST AND TRUSTEE. 1906 trustee in such a way that parties not hefore the court might be prejudiced by a vesting order in the form proposed. But held, that under the circumstances of the case and the court being satisfied that no parties could be prejudiced, the vesting order might be made in the form proposed. Sarum (^Bishoj) of), In re, 55 L. T. 313— Chitty, J. Intestacy — ^Escheat.] — Where the Crown has become entitled to the whole of the trust estate of a testator, and also to a part of the beneficial interest therein, the court cannot, upon an application under the Trustee Acts for the appointment of new trustees of the will and a vesting order, make a vesting order against the Crown, but an application must be made to the court under s. 5 of the Intestates' Estates Act, 1884. Pratt's Trusts, In re, 55 L. T. 313 ; 34 W. K. 757— Chitty, J. Absconding Trustee — Sefusal to join in Appointment.] — The persons having power to appoint new trustees of a marriage settlement, viz., the husband and vidfe, appointed a new trustee in the place of one who had absconded abroad, and jointly with the continuing trustee. The trustee who had absconded declined to join in the appointment, and to execute the necessary transfers. The property subject to the trusts of the settlement consisted of policies of insurance and mortgages. It became therefore imprac- ticable, having regard to sub-s. 3 of s. 34 of the Conveyancing Act, 1881, to vest such property in the trustees without the assistance of the court. A petition for a vesting order was accordingly presented, under the Trustee Acts, 1850 and 1852, by the husband and wife and the continu- ing trustee : — Held, that the order asked for might be made ; but that the petition must be amended by adding the name of the proposed new trustee as a co-petitioner. Keeley's Trusts, In re, 53 L. T. 487— Kay, J. Absconding Liquidator — ^Appointment of New Liquidator.] — After an order had been made for the compulsory winding-up of a com- pany A. B. was appointed official liquidator. A. B. afterwards absconded, and he was removed from the post of official liquidator, and in his place C. D. was appointed official liquidator. It was found that a sum of consols, part of the assets of the company, was standing in A. B.'s name as official liquidator. An application, under the Trustee Act, 1850, ss. 22 and 43, was there- fore made by motion ex parte for an order to vest such sum of consols in C. D. as official liqui- dator. A. B. had become bankrupt and could not be found : — Held, that the court had juris- diction to make the order asked for upon motion ; but that, except in simple cases like the present, the application should be made by petition : — Held, also, that the order asked for should be made, but not drawn up, within a week, and that the trustee in bankruptcy of the absconding liquidator should forthwith be served with notice of the order. Capital Fire Insurance Association, In re, 55 L. T. 633— Chitty, J. See also Mulme's Trusts, In re, infra. "Trustee," who is— Infant — Maintenance — Appointment of Guardian.] — Under the will of her father (a domiciled Scotchman, who made his will in the Scotch form), an infant was entitled to a legacy. The will contained no- express trust for maintenance. The Court of Session in Scotland appointed a curator bonis ta the infant, who received the legacy, and invested it in the purchase of some New Zealand stock, in the sole name of the infant. This stock was transferable at the Bank of England. It was the only property of the infant, and the income derived from it was not sufficient to provide for her maintenance and education. The Court of Session authorised the curator bonis to advance from time to time sums out of capital, not ex- ceeding in all lOOZ., for the purpose of supple- menting the income of the infant, and enabling her to be placed at a suitable school. The curator bonis as next friend, presented a petition, asking that the right to transfer 1001. of the New Zealand stock might vest in him, and that he might be at liberty to sell and transfer the same, and to apply the proceeds in or towards the maintenance or education of the infant ; that the dividends which had accrued, and which might, during the minority of the infant, accrue on the stock, or on the residue thereof after the transfer, might be paid to him, he undertaking to apply them in or towards the maintenance or education of the infant; and that he might be appointed guardian: — Held, that the infant was a " trustee" of the stock, within the meaning of the Trustee Acts, and an order was made vesting the right to transfer 1001. of the stock in the next friend (who was appointed guardian to the infant), and liberty was given to him to sell and transfer the same, and to apply the proceeds in or towards the maintenance or education of the infant ; and that the dividends, accrued and to accrue during the minority of the infant, should be paid to the guardian, he undertaking to apply them in or towards her maintenance or education. Gardner V. Cowles (3 Ch. D. 304) followed. Findlay, In re, 32 Ch. D. 221, 641 ; 55 L. J., Ch. 395— North, J. Contract for Sale of Realty — Death of Vendor before Completion.] — By an order under the Lunacy Regulation Act, 1862, the guardians of the poor of N. were authorised to sell a free- hold belonging to A. C, a person of unsound mind, and to receive the purchase-money and execute a conveyance. The property was sold in May, 1885, the sale to be completed in Novem- ber. An abstract of title was delivered, and no objection was taken to the title. On the 28th of June A. C. died. The guardians now pre- sented a petition, asking that A. G. might be declared a trustee within the meaning of the Trustee Act, 1850, and that their clerk might be appointed a trustee of the property and the estate vested in him in trust to complete the sale : — Held, that A. C. could not be held a trustee within the meaning of the Trustee Act, 1850, and that the order could not be made. Carpenter, In re (Kay, 418) approved. Colling, In re, 32 Ch. D. 333 ; 55 L. J., Ch.486 ; 54 L. T. 809 ; 34 W. E. 464— C. A. Covenant to surrender Copyholds to Uses of Marriage Settlement. ] — By their marriage settle- ment, husband and wife covenanted with the trustee to surrender copyholds of the wife to the uses of the settlement. The marriage was solemnised, but the wife died without ever having surrendered the copyholds, and upon her death they became vested in the youngest child 1907 TRUST AND TRUSTEE. 1908 of the marriage as her customary heir. Upon a petition presented by the trustee of the settle- ment, the eldest child, who was of age, and the other children of the marriage, infants, by their father and next friend, it was ordered by the court that the copyholds, without any surrender or admittance, should vest in the trustee of the settlement upon the trusts of the settlement for all estate of the customary heir. Bradley's Settled Estate, In re, 54 L. T. 43 ; 34 W. K. 148 — Chitty, J. " Seised Jointly "—Coparceners. ] — The words "seised jointly" in s. 10 of the Trustee Act, 1850, are not limited strictly to a legal joint tenancy, but are used In the widest sense, and they include the case of land vested in copar- ceners, one of whom is out of the jurisdiction of the court. Templer's Trusts, In re (4 N. B. 494), and MeMurray v. Sjjif-r (5 L. R., Eq. 527), considered. Greenwood's Trusts, In re, 27 Ch. D. 359 ; .'54 L. J., Ch. 623 ; 51 L. T. 283 ; 33 W. E. 342— Pearson, J. Agreement to grant Building Leases — Cove- nant for Quiet Enjoyment.] — The defendant agreed to grant to the plaintifE leases of houses built by the plaintifE on the defendant's land. Before leases were granted the defendant be- came of unsound mind, though he had not been so found by inquisition, nor had any committee of his estate been appointed. In an action for specific performance, the defendant offered to submit tu a decree, and to have himself declared a trustee for the plaintifE under the Trustee Act, 1850, and to have a person appointed to execute the leases on his behalf, or to have the houses vested in the plaintifE on the terms of the agree- ment : — Held, that the proposed order would vest a legal term in the plaintifE pursuant to the contract, but would not give him the benefit of the express covenant for quiet enjoyment. Cowjjer V. Harmer, 57 L. J., Ch. 460 ; 57 L. T. 714— Stirling, J. No New Trustee — Jurisdiction.] — A new trustee was appointed, under a power, in place of a trustee who had become incapable : — Held, that there was no jurisdiction under the Trustee Acts to reappoint the new trustee and vest the trust estate in the continuing trustees and the new trustee. DagleisKs Settlement, In re (4 Ch. D. 143) overruled. DewMrsfs Trusts, In n: 33 Ch. P. 416 ; 55 L. J., Ch. 842 ; 55 L. T. 427 ; 35 W. R. 147— C. A. See also Batlio, In re, ante, col. 1903. Where there is no doubt that existing trustees of an instrument have been duly constituted, the court will not reappoint them, with a view to making under the Trustee Act, 1850, s. 34, a vesting order which will not sever the joint tenancy. Pearson, In re (5 Ch. D. 982) not followed. Vieat, In re, 33 Ch. D. 103 ; 55 L. J., Ch. 843, n. ; .54 L. T. 891 ; 34 W. R. 645— C. A. A., B., and C. were named trustees in a wiU. A. died, B. became of unsound mind, and C. ap- pointed E. and F. trustees in the place of A. and B. Part of the trust estate consisted of a mortgage of freeholds. The appointment of E. and F. being unquestionably valid, the court refused to reappoint them and make an order vesting the mortgage estate in C, E. and F., but made an order appointing C. in the place of B. to convey the mortgaged property for the estate ,of himself and B. to himself, E., and F. upon the trusts of the will. li. One of two trustees was convicted of felony and sentenced to penal servitude, and upon an application to the Palatine Court a new trustee was appointed, jointly with the remaining trustee. The trust property consisted of land partly within and partly without the jurisdiction of the Palatine Court. On the appointment of the new trustee, the Palatine Court made an order, vesting such part of the land as lay within that court's jurisdiction in the new trustee and the remaining trustee. A petition was then presented to this court, asking for an order vesting the remaining land in the new trustee and the remaining trustee. The evidence showed that the convict trustee could not be found : — Held, that inasmuch as there was no appoint- ment of new trustees to be made on the present petition, no vesting order could be made under s. 8 of the Trustee Extension Act, 1852, having regard to the decision of BewhursCs Trusts, In re (33 Ch. D. 416). But held, that as there was sufficient evidence that the convict trustee could not be found, the court had jurisdiction, under s. 10 of the Trustee Act, 1850, to make a vesting order, and would accordingly make such an order. Ilulnie's Trusts, In re, 57 L. T. 13 — Chitty, J. Contintdng Trust.] — It is the settled practice of the court under the Trustee Acts, when there is a continuing trust, not simply to remove or discharge a trustee, without appoint- ing a new trustee in his place, by appointing the remaining trustees to be sole trustees in place of themselves and him. And though the court will deviate from this rule and make such an appointment if the trustees have no duty to perform but to distribute a fund which is imme- diately divisible, it will adhere to the ordinary rule if there is a continuing trust as regards even a relatively small part of the trust fund. Lamb's Trusts, In re, 28 Ch. D. 77 ; 54 L. J., Ch. 107 ; 33 W. B. 163— Pearson, ,T. Although, where one of the trustees of a trust fund becomes lunatic, the court will not in general vest the right to deal with the trust funds in the trustees of sound mind, but will require a new trustee to be appointed in the place of the lunatic, an order vesting the right to the fund in the trustees of sound mind will be made where the fund is immediately divisible. Martyn, In re, Toutt's Will. In re, 26 Ch. D. 745 ; 54 L. J., Ch. 1016 ; 50 L. T. 552 ; 32 W. E. 734 — C. A. Where one of three trustees was an absconding bankrupt, the court refused, notwithstanding evidence of great difficulty in getting a third person to act as trustee, to appoint the solvent trustees in place of themselves and the bank- rupt, and to make an order vesting the trust estate in the solvent trustees alone, on the ground that the court will not reduce the number of trustees of a continuing trust ; and also that there is no power to appoint existing trustees to be new trustees. Gardiner's Trusts, In re, 33 Ch. D. 590 ; 55 L. J., Ch. 714 : 55 L. T. 261 ; 35 W. R. 28— North, J. Special Circumstances.] — One of the four trustees of a settlement having been adjudicated 19iD9 TEUST AND TEUSTEE. 1910 a bankrupt and having absconded, an action was brought by one of the cestuis que trust against the other three trustees claiming to have the trusts carried into execution, and to have it declared that the defendants v?ere bound to make good any loss which might accrue on three mortgages on which part of the trust funds had been invested, and which the plain- tiff alleged to be insufficient securities. He also alleged that the fourth trustee had acted fraudulently. The legal estate in the mortgaged properties was vested in all the four trustees, and the stocks, in which the remainder of the trust funds had been invested, stood in the names of the four trustees. Before issue was joined in the action the defendants, in pursuance of an order of the court, gave notice to call in two of the mortgages, and one of the. notices had expired. Owing to the pendency of the action no one could be found willing to accept the trusts in place of the bankrupt : — Held, that under these circumstances, the court could properly appoint the defendants trustees in the place of themselves and the bankrupt. An order was' accordingly made appointing the defendants, and vesting in them the mortgaged properties, and the right to sue for and receive the mort- gage debts, and to call for a transfer of, and to transfer, the stocks into their own names, and to receive the dividends thereon, the defendants to pay into court the mortgage money when received. Davies v. Hodgson, 32 Ch. D. 225 — North, J. By a settlement made in 1859 four trustees were appointed, one of whom disclaimed. The •existing three trustees desired to retire, and in the events that had happened the power to ap- point new trustees contained in the settlement was not exerciseable. A petition was accordingly presented for the appointment of three new trus- tees in place of the three who had acted and now wished to retire. Great difficulty was found in obtaining the consent of other persons to act as trustees, and this was alleged as a ground for the ■application that three new trustees should be ^appointed in the room of the original four : — Held, that on an appointment of new trustees by the court, assuming it was necessary to prove special circumstances to enable the court to appoint three new trustees when there had •originally been four trustees, the disclaimer by ■one and the difficulty of obtaining new trustees •constituted special circumstances. Whether special circumstances were actually necessary to be shown, qujere. Fowler's Trusts, In re, 55 L. T. 546— Chitty, J. 2. PEACTICE AS TO. Form and Contents of Petition.] — A petition presented under the Trustee Act should mention the sections under which it is proposed that the order asked for should be made. SalVs Settle- ment Trusts, In re, 58 L. T. 76— Kay, J. Petitions under the Trustee Acts should con- tain a statement indicating the particular sec- tions of the acts under which the court is asked to make an order. Moss's Trusts, In re, 37 Oh. D. 513 ; 57 L. J., Ch. 423 ; 58 L. T. 468 ; 36 W. K. 316— Kay, J. Originating Summons ^- Jurisdiction. ] — The court has no jurisdiction, upon an originating summons in chambers, to make an order appoint- ing new trustees, and vesting in them the trust estate. Gill, In re, Smith v. Gill, 53 L. T. 623 ; 34 W. E. 134— Kay, J. Infant Heir of surviving Trustee — Service of Petition.] — A petition for vesting in beneficiaries lands of which the legal estate had descended to the infant heir of the last surviving trustee, ordered to be served on the infant. Adams' Trusts, In re, 57 L. T. 337 ; 35 W. E. 770— Kay, J. Slip — Second Petition — Further Vesting Order.] — An order was made, upon a petition, appointing new trustees of the will of a testator, and vesting in them the property mentioned in the petition, subject to the trusts of the will. After the order had been drawn up, passed, and entered, it was discovered that one part of the trust property had been inadvertently omitted in the order, and another part, by an accident, had not been mentioned in the petition. The new trustees were not able, therefore, to obtain a transfer of such property into their own names. A .second petition was accordingly presented by the same persons, who were thepetitioners in the first petition. Ss. 22 and 35 of the Trustee Relief Act were referred to as giving jurisdiction to the court to make a further order. The court made an order vesting in the new trustees all the pro- perty which had been omitted, and directing the costs of the application to be paid out of the trust estate. Hopper's Trusts, In re, 54 L. T. 267 ; 34 W. E. 392— Chitty, J. In Chambers — Bight to Transfer Stock.] — On a petition for the appointment of new trustees and a vesting order, an order was made in court on the 28th of June, 1884, that two or more proper persons should be appointed trustees, and that an inquiry should be made of what the trust funds consisted ; and the parties were to be at liberty to apply in chambers for an order to vest the trust property in the new trustees when appointed. On the 22nd of July, before any certificate as to the trust funds had been made, an order was made in chambers appointing new trustees, and directing that the right to call for a transfer of, and to transfer into their own names, certain sums of stock specified in the order " may " vest in the new trustees. This order mentioned, but did not recite, the order of the 28th of June. The Bank of England refused to act on it, and Bacon, V.-C, on the 28th of November, made an order directing them to do so. The bank appealed : — Held, that the matter having been properly brought before the court on petition, the judge had power, under the pro- visions of the Masters Abolition Act, 1852 (15 & 16 Vict. c. 80), to dispose in chambers of such parts of the matters brought before him on the petition as he thought could -be more conveniently disposed of in chambers than in court, and that there was therefore jurisdiction to make the order of the 22nd of July. Frodsham v. Frods- liam (15 Ch. D. 317) distinguished. Tweedy, In re, 28 Ch. D. 529 ; 54 L. J., Ch. 331 ; 52 L. T. 65 ; 33 W. E. 313— C. A. But held, that the order was so irregular in form that the bank were justified in declining to act upon it, they being entitled to require a vesting order to be in such a form as to show that the statutory requirements have been 1911 TRUST AND TRUSTEE. 1912, satisfied. Statement of the recitals which ought to be contained in a vesting order made in chambers under the Trustee Act. lb. V. APPOINTMENT AND REMOVAL OF TRUSTEES. 1. EXERCISE OP POWEE. Eecital in Deed.] — A will contained a power for the trustees or trustee thereof to appoint new trustees. The trust property comprised a renewable release. After the death of the testator a renewal of the lease was granted to four persons, who had not been appointed trustees of the will, but who in the lease granted to them were described as "the pre- sent trustees " of the will. The surviving trustee and executor of the will was a party to this deed, and the demise was expressed to be made by his direction : — Held, on the authority of Paulson v. Wellington (2 P. Wms. 533), that this statement in the renewed lease operated as an appointment of the four lessees to be trustees of the will. FarnclVs Settled Estates, In re, 33 Ch. D. 599 ; 35 W. E. 250— North, J. During Pendency of Administration Action.] — After judgment in an action for the administra- tion of the trusts of a will, the pereon having by the terms of the will or by statute the power of appointing new trustees, retains such power so far as it does not conflict with the order which has been made, but subject to the control of the court ; and the proper course is for such person, before exercising the power, to submit the name of the proposed new trustee to the chief clerk in chambers for approval. Hall, In re, Hall v. Hall, 54 L. J., Ch. 527 ; 51 L. T. 901 ; 33 W. E. 508 — Pearson, J. Refusal of Sole Trustee to appoint Co-trustee. ] — ^A sole continuing trustee under a. will which contained a power to appoint new trustees so worded as to contemplate the possibility of there being a sole trustee, was held justified in refusing to appoint a co-trustee with himself, although required to do so by a cestui que trust ; and a trust fund which, under an order of the court below, he had paid into court, was ordered to be paid out to him alone. Peacocli v. Colling, 54 L. J., Ch. 743 ; 53 L. T. 620 ; 33 W. E. 528— C. A. Person to exercise Power.] — A settlement executed in 1878 contained no express power to appoint new trustees, but there was a declaration that the husband and wife during their joint lives, and the survivor of them during his or her life, " shall have power to appoint new trustees or a new trustee for this settlement." There was no express reference to the power of appoint- ing new trustees conferred by s. 27 of Lord Cranworth's Act, which was then in force : — Held, that after the commencement of the Con- veyancing Act, 1881, the husband and wife were the proper persons to exercise the power con- ferred by s. 31 of that act of appointing a new trustee inplace of one of the trustees who had remained out of the United Kingdom for more than twelve months, though s. 27 of Lord Cran- worth's act did not provide for, and the parties when they executed the settlement probably did not contemplate, the occurrence of a vacancy m- that event. Wallier and Hughes'' Contract, In re^ 24 Ch. D. 698 ; 53 L. J., Ch. 135 ; 49 L. T. 597 —North, J. Alienation of Interest by Donee of Power. } — A power to appoint new trustees may be= exercised by a tenant for life after alienating his- interest. By a settlement, property partly real and partly personal was conveyed to trustees- upon trust to provide an annuity for A., a widow, for life, and subject thereto, for B., her son, abso- lutely. The settlement provided that B. during- his life, and after his death the trustees or trustee for the time being, or the executors or adminis- trators of the last acting trustee, should have, power to appoint new trustees, if necessary. B. mortgaged his whole interest under the settle- ment, and the real estate (subject to A.'s annuity) was sold by the mortgagees to C. The personal estate was not sold by the mortgagees :— Held, that B. could still exercise the power to appoint new trustees, without the consent of C. Hardalter L. J., Ch. 713 North, J. 3Ioorlioiise, 26 Ch. D. 417 ; 53 50 L. T. 554 ; 32 W. E. 638— Provision in Private Act — ^Approbation of the Court.] —A private act, passed in the year 1869, enacted that s. 27 of Lord Cranworth's Act should be deemed and taken to apply to the trusteeship of the " Manchester estates " com- prised therein ; " provided that every new trustee of the said estates shall be appointed with the approbation of the Court of Chancery." In the year 1886, a deed was executed by the continuing trustees appointing new trustees under the power " vested in them by statute." This deed contained the usual declaration vest- ing the estates in the new trustees ; but the appointment was not made with the approba- tion of the court : — Held, that the deed must be construed as if the special provision contained in the private act had formed part of Lord Cranworth's Act ; that, as Lord Cranworth's Act had been repealed, the court could not add that special provision to the general power of appointment given by the Conveyancing Act, 1881 ; and that, therefore, the new trustees were well appointed. Lloyd's Tj-ustees, In re, 57 L. J., Ch. 246— North, J. Removal, in what Cases.] — There is a jurisdic- tion in Courts of Equity to remove old trustees and substitute new ones in cases requiring such a remedy. The main principle on which such juris- diction should be exercised is the welfare of the beneficiaries and of the trust estate. The court below refused to remove certain trustees on the application of the cestui que trust. On appeal: — Held, that the trustees must, in the special cir- cumstances of the case, be removed without costs of appeal, the appellant having persisted in chai'ges of fraud which the evidence did noti sustain. Letterstedt v. Broers, 9 App. Cas. 371 ; 53 L. J., P. C. 44 ; 51 L. T. 169— P. C. 2. IN WHAT CASES. Death of Sole Trustee in Lifetime of Testator.] — Where a sole trustee for sale of a will had died in the lifetime of the testator, a petition 1913 TEUST AND TRUSTEE. 1914 -was presented by the administrator of the testa- tor, and the executors and trustees of the trustee of the will who had died, asking for the appointment of two new trustees and for a Testing order: — Held, that s. 31 of the Convey- ancing Act, 1881, did not apply, and that there- fore the petition was necessaiy. Ambler's Trusts, In re, 59 L. T. 210— Kay, J. Bepresentative of Sole Trustee.] — The power of appointing new trustees, given bys. 31 of the Con- veyancing Act, 1881 , to " the personal representa- tives of the last surviving or continuing trustee '" includes the case of an executor of a sole trustee. Shafto's Trusts, 1% re, 29 Ch. D. 247 ; 54 L. J., Ch. 885 ; 53 L. T. 261 ; 33 W. R. 728— Pear- son, J. The representative of a deceased trustee is not hound at the request of the cestuis que trustent to exercise the power of appointing new trustees given by the Conveyancing and Law of Property Act, 1881, and the refusal to do so is not a suffi- cient reason for ordering the executors to pay the costs of a petition for the appointment of new trustees. Kniglifs Trust, or Will, In re, 26 Ch. D. 82 ; 53 L. j., Ch. 223 ; 49 L. T. 774 : 32 W. E. 336— Pearson, J. "Continuing Trustees" — "Contrary Inten- tion" — ConTeyancing Act, 1881, s. 31.] — On a summons under the Vendor and Purchaser Act, 1874, an objection was taken by a purchaser from trustees that aii appointment of one of their number, under the power given by s. 31 of the Conveyancing Act, 1881, in the place of a trustee who had been abroad for more than twelve months, was invalid because that trustee had not joined in making the appointment : — field, that there being no evidence that the absent trustee was either willing or competent to join in making the appointment, the objection could not be sustained. Coates to Parsons, In re, 34 Ch. D. 370 ; 56 L. J., Ch. 242 ; 56 L. T. 16 ; 35 W. E. 375— North, J. The instrument creating a trust cannot be taken to have expressed a contrary intention within sub-s. 7 of s. 31 of the Conveyancing Act, 1881, merely because it does not provide for filling up a vacancy in the number of the trustees upon the happening of an event not contemplated by the parties to that instrument. Zh. Consent of Persons beneficially Inte- rested.] — A settlement of real estate of which there were four trustees, provided that if the trustees thereby appointed, '• or any future trustee or trustees to be appointed in the place of them or any of them as hereinafter mentioned," should die or be desirous of being discharged, •&0., it should be lawful for " the surviving or ■continuing trustee or trustees for the time being," with the consent of the tenant for life or in tail ior the time being entitled in possession, to appoint a new trustee or new trustees in the place of the trustee or trustees so dying, &c. In 1872, four new trustees were appointed under the Trustee Act, 1850, in the place of two de- ceased and two retiring trustees. After this a decree was made for carrying the trusts of the settlement into execution. Two of the trustees of 1872 being dead, and another desiring to retire, the plaintiff, who was an infant tenant in tail in possession, took out a summons to ap point new trustees. W., the continuing trustee, took out a summons, asking that he might be at liberty to appoint new trustees. A reference to chambers being directed, W. proposed new trus- tees whom the court considered to be proper persons, but to whom all the persons beneficially interested objected : — Held, that the persons nominated by W. must be appointed, though the tenant in tail in possession did not consent, for that as the power in the settlement only applied to filling up vacancies in the number of original trustees, or trustees appointed under the power, it had come to an end when new trustees were appointed by the court in 1872, and that the fetter imposed by the settlement on the exercise of that power did not apply to the new power given to the continuing trustee by the Convey- ancing and Law of Property Act, 1881, which enabled him to fill up vacancies in a body of trustees not coming within the scope of the power in the settlement. Cecil v. Langdon, 28 Ch. D. 1 ; .54 L. J., Ch. 313 ; 51 L. T. 618 ; 33 W. E. 1— C. A. Eetiring Trustee joining in Appointment.] — Semble, that if a trust deed contained a power to appoint new trustees expressed in the same words as sub-s. 1 of s. 31, without anything more, it would not be necessary that a retiring trustee should join in the appointment of his successor. In such a case the words " continuing trustee " would mean only a trustee who is to continue to act in the trusts after the completion of the appointment. Travis v. Illingworth (2 Dr. & Sm. 344), and A'ojvw, In re (27 Ch. D. 333), approved. Opinion of Bacon, V.-C, in Olenny and Hartley, In re (25 Ch. D. 611), dissented from. Coates to Parsons, In re, supra. A trustee who has made up his mind to retire, may be a " continuing " trustee, until he has executed the deed appointing new trustees, rjy a settlement in 1867 (Lord Cranworth's Act having been passed in 1860), it was declared that it should be lawful for " the surviving or con- tinuing trustees," in the event of any trustees declining to act, to discharge such trustees, and to appoint any new trustees ; and it was provided that nothing should authorise the discharge of the only continuing trustees without the substi- tution of others. Of three original trustees, one having died, the other two by deed in 1874, after reciting that they themselves " declined to act " and "desired to be discharged," and had "de- termined to appoint " three other persons to be trustees, " in exercise of the power for this pur- pose vested in them" by the settlement, appointed the three persons " to be trustees in the place of " themselves and the deceased trustee respec- tively : — Held, that the appointment was good. Tratis v. Illingwortli (2 Lr. & Sm. 344) not fol- lowed. Olenny and Hartley. In !'e,25 Ch. D. 611 ; 53 L. J., Ch. 417 ; 50 L. '1.79 ; 32 W. E. 457— V.-C. B. When a power of appointing new trustees authorises the continuing trustee or trustees to appoint a new trustee or trustees in the place of a trustee or trustees becoming unwilling to act, an appointment by a sole continuing trustee, in the place of a trustee who desires to retire, is valid ; it is not necessary that the retiring trus- tee should join in making the appointment. Olenny and Hartley, In re (25 Ch. D. 611), commented on. Travis v. Illingworth (2 Dr. & Sm. 344) approved and followed. Norris, In re, 1915 TEUST AND TRUSTEE. 191ff Allen V. Norri.1, 27 Ch. D. 333 ; 53' L. J., Ch. 912 ; 51 L. T. 593 ; 32 W. B. 955— Pearson, J. Separate Sets of Trustees for distinct Trusts.] — ^Under the trusts of a will different parts of the testator's property were subject to distinct trusts, but in a certain event the trusts would coalesce : — Held, that there was power to appoint separate sets of trustees for the different parts of the property. Hutlicrbigton^s Trnxts, In re, 34 Ch. D. 211 ; 56 L. J., Ch. 174 ; 55 L. T. 806 ; 35 W. E. 285— North, J. Section 5, sub-s. 1, of the Conveyancing Act, 1882, authorises the appointment of a separate set of trustees for a part of the trust property held on distinct trusts only when an appoint- ment is being made of new trustees of the whole property. It does not enable the existing trustees of the whole property to retire from the trusts as to part by means of an appointment of new trustees of that part. Savile v. Coupcr, 36 Ch. D. 520 ; 56 L. J., Ch. 980 ; 56 L. T. 907 ; 35 W. E. 829— North, J. A testator devised properties in two different parishes in strict settlement in favour of different families, and appointed two trustees of the whole. The powers entrusted to the trustees were very wide. One trustee having died, a peti- tion was presented for the appointment of two new trustees to act with the surviving trustee as to one property only : — Held, that the court had power to make the appointment under the Con- veyancing Act, 1882, s. 5, though the surviving trustee was trustee for both properties. Paine' s Trusts, In re, 28 Ch. D. 725 ; 54 L. J., Ch. 735 ; 52 L. T. 823 ; 33 W. E. 564— Pearson, J. Independently of s. 5 of the Conveyancing Act, 1882, the court has power under the Trustee Acts to allow trustees to retire from the trusts of a part of the trust property, held upon trusts distinct from those affecting the remainder, and to appoint a separate set of trustees of such part. Savile V. Couper (36 Ch. D. 520) considered. Moss's Trusts, In re, 37 Ch. D. 513 ; 57 L. J., Ch. 423 ; 58 L. T. 468 ; 36 W. E. 316— Kay, J. Sections, sub-s.l, of the Conveyancing Aot,l 882, does not authorise the appointment of a separate set of trustees for a part of the trust property held on distinct trusts, except on an appointment of new trustees of the entire property. JVesiitt's Trusts, In re, 19 L. E., Ir. 509— M. E. Additional Trustees — Trustee Act, 1850, s. 32.] • — The sole trustee of a will who had acted, and was in no way personally disqualified from continuing to act, in the trusts, was desirous of being discharged from the trusts of a particular fund, forming portion of the trust property, and had expressed his intention of lodging such fund in court unless new trustees were appointed in respect of it, whom he declined to appoint himself : — Held, not to be a case of expediency for the appointment of additional trustees within s. 32 of the Trustee Act, 1850. NesUtVs Trusts, In re, 19 L. E., Ir. 509— G. A. Under s. 32 of the Trustee Act, 1850, the court has jurisdiction to appoint an additional trustee, even though there is no vacancy in the trusteeship. Braeltenbury's Trusts, In re (10 L. E., Bq. 45) followed. Semble, that the power conferred by sub-s. 2 of s. 31 of the Conveyancing Act, 1881, to increase the number of trustees, " on an appointment of a new trustee," only arises when an appointment is being made to supply a vacancy in the trusteeship. Gregson's Trusts, In re, 34 Ch. D. 209 ; 56 L. J., Ch. 286 ; 35 W. E. 286— North, J. One Trustee a Discharged Bankrupt — New Trustee substituted.] — One of the two trustees of a will had been adjudicated a, bankrupt, bnt had obtained his discharge. The other trnstee, who was beneficially entitled also to one-third of the trust estate, petitioned for the removal of the trcistee who had been bankrupt, and the appoint- ment of a new trustee. The application was opposed by beneficiaries entitled to greater shares than the petitioner : — Held, that the bankruptcy being a recent one, the trustee must be entirely impecunious ; and that it was expedient under s. 147 of the Bankruptcy Act, 1883, to appoint a new trustee in the place of the one who had been bankrupt, notwithstanding that he had obtained his discharge. Foster's Trusts, In re, 55 L. T. 479— Kay, J. lunatic — Consent to Appointment by Com- mittee. ] — A will contained a power of appoint- ment of new trustees exercisable with the consent of the tenant for life. The trustees having died, the tenant for life who had been found limatic,. presented a petition in Lunacy and Chancery by the committee of her estate as next friend for the appointment of new trustees : — Held, that there was no jurisdiction in lunacy to appoint new trustees, and that the only proper application in lunacy was to ask for an order authorising the committee to consent on behalf of the lunatic to an appointment of trustees under the power. Garrod, In re, 31 Ch. D. 164 ; 55 L. J., Ch. 311 ; 54 L. T. 291 ; 34 "W. E. 157—0. A. • Denial of Lunacy — Jurisdiction.] — The court will not, on a petition under the trustee Act, 1850, remove a trustee against his wish. Where the ground for a petition for the appoint- ment of a new trustee is the alleged insanity of a trustee, and the insanity is denied by him, the court will not try the question whether the trustee is of sound mind, nor will it (under s. 52) direct a commission in the nature of a writ de lunatico inquirendo to issue concerning such person, the proper mode of establishing the lunacy in such a case being on a petition in lunacy or in an action in the High Court to remove the trustee. Combs, In re, 51 L. T. 45 — C. A. '■ Person of Unsound Mind."] — The clause in s. 2 of the Trustee Act, 1850, which declares that the expression "person of unsound mind" shall mean " any person, not an infant, who, not having been found to be a lunatic, shall be in- capable from infirmity of mind to manage his own affairs," must be construed as referring to a person who, although not found a, lunatic, is nevertheless in such a state of mind as to render him liable to be so found if an inquisition were held upon him. The case of a trustee who is from great age and its infirmities practically incapable of transacting business (though not otherwise of unsoimd mind) is within s. 32 of the Trustee Act, 1850. Phelps' Settlement Trusts, In re, 31 Ch. D. 351 ; 55 L. J., Ch. 465 : 54 L. T. 480— C. A. A paralytic deprived of the power of speech, and unable to read or write or attend to business, but apparently not suffering from any mental 1917 TEUST AND TRUSTEE. 1918 disease, is not a person of unsound mind within the Trustee Act, 1850. Barber, In re, 39 Ch. D. 187 ; 57 L. J., Ch. 756 ; 58 L. T. 756 ; 37 W. E. 182— C. A. A person is of "unsound mind" within the meaning of the Trustee Act, 1850, where from permanent incapacity of mind he is incapable of managing his affairs, though his state of mind is not such that he would he found lunatic on inquisition. Phelps' Settlement Tmsts, In re (31 Ch. D. 351), not followed. In an action in the Chancery Division, the court gave a judg- ment removing a trustee of unsound mind, and appointing a new trustee in his place, but declined to make an order under s. 3i of the Trustee Act, 1850, vesting the estate in the new trustee, considering that it ought to be applied for in Lunacy. The Lords Justices sitting in Lunacy made the vesting order. Martin's Tiiists. Ill re, 34 Ch. D. 618 ; 56 L. J., Ch. 695 ; 56 L. T. 241 ; 35 W. R. 524— C. A. Tinder Settled Land Act.]— &« Settlement. Policies of Insurance— Benefit of Wife and Children.] — See Iksurance, I., 4. 3. "WHO APPOINTED TRUSTEES. Interested Parties.] — The court refused to ap- point as trustee the remainderman entitled on the death of an infant tenant in tail in posses- sion, the powers being very wide. Paine's Trusts, 1)1 re, 28 Ch. D. 725 ; 54 L. J., Ch. 735 ; 52 L. T. 323 ; 33 W. R. 564— Pearson, J. The original trustees of a will being dead, a petition was presented for the appointment of new trustees, and for a vesting order. The persons proposed to be appointed were both beneficially interested under the will, but it was found impossible to obtain the services of in- dependent persons. All the beneficiaries, except one who was abroad, were co-petitioners, and were desirous that the persons proposed as trustees should be appointed. The court made the order, subject to an undertaking by the new trustees that if either became sole trustee he would use every endeavour to obtain the appoint- ment of a co-trustee ; and dispensed with service on the absent beneficiary. Liglittody's Trusts, In re, 52 L. T. 40 ; 33 W. R. 452— Kay, J. On a petition for the appointment of a new trustee of a will in substitution for one who had died, the court (declining to lay down any hard- and-fast rule that under no circumstances wiU a cestui que trust and one of the donees of a power to appoint new trustees be appointed as trustee) directed the appointment as trustee of one of several persons beneficially interested in the estate of the testator, who had nominated as trustees of his wUl persons to whom he had given bene- ficial interests, and on their death or retirement had empowered the persons beneficially entitled for the time being "to appoint one or more persons to supply the vacancy." Tempest v. Camoys (LartC), 58 L. T. 221 ; 52 J. P. 532— Chitty, J. Solicitor Trustee appointing Son.] — On the retirement oE one of two trustees of a will, the continuing tru.stee, who was the solicitor to the trustees, appointed his son, who was his partner in his business, to be a new trustee. The trusts of the will were being administered by the court : — Held, that, without any reference to the personal fitness of the son, by reason of his position the appointment was one which the court ought not to approve, though it would not have been invalid if the court had not been ad- ministering the trusts. Kiirrh, In re, Allem v. Norris, 27 Ch. D. 333 ; 53 L. J., Ch. 912 ; 51 L. T. 593 ; 32 W. E. 955— Pearson, J. Two Trustees out of, and one within, the Jurisdiction.] — The oestuis que trust (some of whom were infants) under a settlement of free- hold farms in Wales (dated in 1840), were all resident out of the jurisdiction either in Canada or the United States. The settlement contained a power of sale exercisable with the consent of the equitable tenant for life, and a power of appointing new trustees exercisable by the sur- viving or continuing trustee, or the heirs or assigns of the last surviving or continuing trustee. In 1874, when both the original trustees of the settlement were dead, the executrix of the last surviving trustee, erroneously believing herself empowered in that behalf, puiported to appoint two persons resident in Canada to be trustees of the settlement. These two persons, believing themselves to be duly appointed, had acted as trustees since 1874, and had employed an English agent to receive the rents of the farms, paying him a commission for so doing. The heir of the last surviving trustee could not be found, and there was no one capable of exercising the power of appointing new trustees contained in the settlement. Upon a petition by all the oestuis que trust for the appointment by the court of the two Canadians and the English agent as new trustees, and for authority to pay the English trustee a commission on the rents while acting as manager and receiver, the court ap- pointed the two persons resident in Canada and the English agent to be new trustees of the settlement, but required an undertaking by the trustees out of the jurisdiction in case the power of appointing new trustees should become exer- cisable by them, or either of them,' not to appoint any new trustee resident out of the jurisdiction without the consent of the court. The court also, subject to the production of evidence as to the number of the holdings, the rents and dates of payment, the necessity of paying a commission for collecting the rents, and that the proposed remuneration was proper, sanctioned the pay- ment of a commission to the English trustee. Freeman's Settlement Trusts, In re, 37 Ch. D. 148 ; 57 L. J., Ch. 160 ; 57 L. T. 798 ; 36 W. R. 71— Stirling, J. 4. PRACTICE. Originating Summons.] — Upon an originating summons asking for general administration of an estate and the appointment of new trustees, the court can make an order for the appoint- ment of new trustees, all the parties interested in the appointment being before the court Allen, In re, Simes v. Simes, 56 L. J., Ch. 779 56 L. T. 611— Stirling, J. The court has no jurisdiction upon an origi- nating summons in chambers, to make an order appointing new trustees. Gill, In re, Smith v. Gill, 53 L. T. 623 ; 34 W. E. 134— Kay, J. 1919 TRUST AND TEUSTEE. 1920 Service of Petition— Cestuis que Trust out of Jurisdiction. ]■ — Upon a petition presented by the persons entitled to the residue of a testator's estate for the appointment of new trustees of his will in the place of a deceased trustee and a lunatic trustee, the court dispensed with the serTioe of the petition upon one out of four per- sons entitled to the proceeds of sale of certain real estate devised by the will who was resident in Australia. Wilson, In re, 31 Ch. D. 522 ; 55 L. J., Ch. 632 ; 54 L. T. 263— C. A. See also Zightbody's Trusts, In re, supra. Affidavit of Fitness of New Trustee — Descrip- tion.] — In support of a petition for the appoint- ment of a new trustee in the place of a trustee who had become lunatic, two affidavits were filed as to the fitness of the person proposed to be appointed. The deponent of one affidavit was described as a " gentleman," the other de- ponent being described as an accountant. Each affidavit described the proposed new trustee as a " gentleman," but also stated that he was a per- son of independent means : — Held, that the de- scription of the deponent as a " gentleman " was insufficient, that the position in life of the depo- nent ought to be stated, so as to enable the court to judge whether his evidence was reliable, but that the other affidavit was sufficient. Horwood, In re, 55 L. T. 373— C. A. Verification of Consent of New Trustee.] — Although the Rules of December, 1885, do not apply to lunacy proceedings, and, therefore, when a, petition is presented in lunacy for the appoint- ment of new trustees, the consent of the new trustees must be verified by affidavit, yet when a petition is presented intituled in the Chancery Division and in Lunacy, asking for the appoint- ment of new trustees under the jurisdiction of the Lords Justices as additional judges of the Chancery Division, and a vesting order under the jurisdiction in Lunacy, the Eules of Decem- ber, 1885, apply, and the consent to act is suffi- ciently verified by the signature of the solicitor. Hume, In re, Trenehard's Will, In re, 55 L. T. 414— C. A. The persons entitled to the residuary estate of a testator presented a petition for appoint- ment of new trustees of his will in the place of the original trustees, one of whom had died, and the other was a lunatic : — Held, that the signa- ture of a new trustee to his consent to act must in lunacy be verified by affidavit according to the old practice, the Ord. XXXVIIL, r. 19a, not applying to proceedings in lunacy. Wilson, III re, 31 Ch. D. 522 ; 55 L. J., Ch. 632 ; 54 L. T. 263—0. A. S. P. Needham, In re, 54 L. T. 263— C. A. Where a new trustee is appointed in Chancery as well as in Lunacy, his signature to his consent to act may be verified in manner provided bv •Ord. XXXVIIL, r. 19 a, and need not be verified by affidavit according to the old practice. Seous, where the order is made in Lunacy only. Wilmii, In re (31 Ch. D. 522) explained. Hume, In re, 55 Ch. D. 457 ; 56 L. J., Ch. 1020 ; 56 L. T. 351 ; 36 W. R. 84— C. A. VI. FOLLOWING TETIST MONEY. Mon«y advanced for Particular Purpose — H'on-application by Borrower— Bight of Lender] — Money had been advanced by the plaintiff to the defendant for the purpose of purchasing a certain business, and on an undertaking of the defendant so to apply it, the defendant did not apply it to that purpose, but spent some of it in paying debts of, his own. He then became bankrupt. The plaintiff was able to trace the remainder of the money advanced by him : — Held, that a duty had been imposed on the de- fendant of applying the money in a particular way, and a fiduciary relation created, so that, the money not having been applied in the specified way, the plaintiff could recover in full so much as remained of it, notwithstanding the bank- ruptcy of the defendant. Gibert v. Gonard, 54 L. J., Oh. 439 ; 52 L. T. 54 ; 33 W. R. 302— North, J. Money handed to Solicitor — Eight of De- frauded Person.] — A solicitor took money of his clients, and pretended to have invested it on mortgage ; after the death of the solicitor there was money in the hands of his representative which could be identified as part of the money received by him from his client : — Held, that the client could follow this money, and require it to be applied in payment of the money of which he had been defrauded. Hallett's Entate, In re, KnatcUull v. Hallett (13 Ch. D. 696) followed. Murray, In re, BicJcson v. Mtirray, 57 L. T. 223 — Stirling, J. Sale of Goods wrongfully obtained — Proceeds.] — Where a person wrongfully obtained goods and sold them, and the proceeds of sale were paid into a colonial bank for the purpose of transmission to its Loudon branch, he receiving bills of exchange to the amount of the proceeds drawn by the colonial bank on its London branch : — Held, that the owners of the goods were entitled to follow the proceeds in the hands of the bank, and to be paid the amount of the bills, as bills, as they became posses.sed of them. Cuniite des Assureurs Maritimes v. Standard Batik of South Africa, 1 C. & E. 87 — Stephen, J. Breach of Trust — Fraud of one Trustee.] — C, trustee with the plaintiff of a will, and also trustee with the defendant of a settlement, having misappropriated a portion of the settle- ment fund, applied an equal portion of the will fund in the purchase of stock, which he trans- ferred into the names of himself and the defen- dant. The plaintiff and defendant were both innocent of O.'s fraud, and the defendant and the cestuis que trusts under the settlement had no notice that the stock was purchased with part of the will fund. C. died insolvent. In an action by the plaintiff to compel the defendant to transfer the stock to him : — Held, that the defendant having by accepting the transfer of the stock given up his right to sue 0. for his debt to the trust, was entitled to be treated as a purchaser for value without notice, and conse- quently to retain the stock as part of the settle- ment fund. Tm/lnr v. Blaheloeh, 32 Oh. D. 560 ; 56 L. J., Ch. 390 ; 55 L. T. 8— C. A. Affirming 34 W. R. 175— V.-C. B. Payment by Auctioneer into Bank.] — An auctioneer received moneys from a sale of live stock, and paid them into his private account at the defendants' bank. His account was over- 1921 UNCONSCIONABLE BAEGAINS, ETC. 1922 drawn to an amount not exceeding 2,500?. ; but under an avrangement which was then subsisting, he was permitted to overdraw up to 2,500Z., and he had no suspicion at the time when he paid in Buch moneys of any intention on the part of the bank to close his account. Tlie bank shortly afterwards closed the account, and applied the proceeds of the sale in reduction of the over- draft. The bank had notice that the moneys so paid in were substantially the produce of the sale of stock. An action was brought by the plaintiff, on behalf of all the vendors at the sale, against the bank, to recover their respective purchase-moneys, less the auctioneer's commis- sion : — Held, that the auctioneer paid the pro- ceeds of the sale to his private account in the ordinary course of business, and was not guilty of a breach of trust in so doing, and that there- fore the plaintifE had no remedy against the bank. Marten v. Roolce, 53 L. T. 946 ; 34 W. K. 253— North, J. YII. THE TETJST ESTATE. Accretion to — Devise to first Mortgagees — Mortgage held on Trust.] B., by will dated the 24th March, 1884, devised his freehold ground rent arising out of the house and premises, No. 7, W. Terrace, and all his interest in the said premises, " to the present mortgagees thereof." At the date of the will, and of B.'s death, there was no mortgage of the freehold ground rent in existence, but the leasehold pre- mises out of which the rent arose were mort- gaged by demise to the trustees of a certain settlement to secure moneys advanced by them out of the trust funds. These trustees and the beneficiaries under the settlement were alike strangers to B. : — Held, that the ground rent passed under the devise to the trustees of the settlement, but that they took upon the trusts of the settlement, and not beneficially. Payne's Settlement, In re, Kibile v. Payne, 54 L. T. 840 —North, J. Assignment— Fund partly in Court and partly in Hands of Trustees.] — When an assignment is made of an interest in a trust fund, part of which is in court and part in the hands of the trustees, the assignee, in order to complete his title, must, as regards the fund in court, obtain a stop order, and as regards the fund in the hands of trustees, give notice to the trustees. Mutual lAfe Asswance Society v. Langley, 32 Gh. D. 460 ; 54 L. T. 326— C. A. Aifirming 53 L. J., Ch. 996 ; 32 W. K. 791— Pearson, J. TURNPIKE. See WAY. UNCONSCIONABLE BAR- GAINS AND UNDUE INFLUENCE. Setting Aside Deed — Gift to Solicitor.] — See Solicitor, IV., 2. Convent — Rules of Poverty and Obedience — Voluntary Gift — Laches — Aettuiescenoe.] — In 1868 A. was introduced by N., her spiritual director and confessor to S., the lady superior of a sisterhood, and became an associate of the sisterhood. N. was one of the founders and also the spiritual director and confessor of the sisterhood, which was an association of ladies who devoted themselves to charitable works. In 1871, A., having passed through the grades of postulant and novice, became a professed mem- ber of the sisterhood, and bound herself to observe (inter alia) the rules of poverty, chastity, and obedience, by which the sisterhood was regulated, and which were made known to her when she became an associate. These rules were drawn up by N. The rule of poverty required the member to give up all her property, either to her relatives, or to the poor, or to the sisterhood itself, but the forms in the schedule to the rules were in favour of the sisterhood, and provided that property made over to the lady superior should be held by her in trust for the general purposes of the sisterhood.. The rule of obedience required the member to regard the voice of her superior as the voice of God. The rules also enjoined that no sister should seek advice of any extern without the superior's leave. A., within a few days after becoming a member, made a will bequeathing all her pro- perty to S. ; and in 1872 and 1874, having become possessed of considerable property, handed over and transferred several large sums of money and railway stock to S. In May, 1879, A. left the sisterhood and immediately revoked her will, but made no demand for the return of her property until 1885, when she commenced an action against S., claiming the return of her property on the ground that it was made over by her while acting under the paramount and undue infiuence of S., and without any inde- pendent and separate advice : — Held, that although A. had voluntarily and while she had independent advice entered the sisterhood with the intention of devoting her fortune to it, yet as at the time when she made the gifts she was subject to the influence of S. and N., and to the rules of the sisterhood, she would have been entitled on leaving the sisterhood to claim the restitution of such part of her property as was still in the hands of S., but not of such part as had been expended on the purposes of the sister- hood while she remained in it : — But held (dis- sentiente Cotton, L.J.), that under the circum- stances the plaintiff's claim was barred by her laches and acquiescence since she left the sister- hood. AUca/i-d V. Skinner, 36 Ch. D. 145 ; 56 L. J., Ch. 1052 ; 57 L. T. 61 ; 36 W. R. 251— C.A. Sale of Berersion — Independent Advice — Undervalue,] — ^Where the circumstances attend- ing the sale of a reversion raise a presumption of fraud, the onus of proof is on the purchaser, 3 Q 1923 UNIVEESITY— VACCINATION— VAGEANTS. 1924 and if it appears that the sale was made by a poor and ignorant man, at a considerable under- value and without independent advice, the court will set it aside. Frii v. Lane, 40 Oh. D. 312 58 L. J., Ch. 113 ; 60 L. T. 12 ; 37 W. E. 135- Kay, J. Setting Aside — Terms.] — The purchaser of a contingent reversionary interest insured the life of the vendor and paid premiums for some years. The sale was subsequently set aside : — Held, that the purchaser was entitled to repay- ment of the purchase money and interest, but not to repayment of the premiums. IT). UNDERWRITER. See INSURANCE. UNIVERSITY. Eight of tlndergradiiates to Vote.] — The undergraduates of Oxford and Cambridge are not permitted to reside in their rooms during the vacations, which comprise nearly six months of the year, without special leave from the college authorities, who are accustomed to let and otherwise make use of their rooms during their absence : — Held, that such compulsory absence amounted to a break of residence dis- qualifying them for the exercise of the fran- chise. Tanner v. Carter ; BanTts v. Mansell, 16 Q. B. D. 231 ; 55 L. J., Q. B. 27 ; 53 L. T. 663 ; M W. K. 41 ; 1 Colt. 435— D. Jurisdiction of Chancellor's Court.] — In an action for libels alleged to have been published in London, the defendant was a resident under- graduate member of Oxford University ; the plaintiflE resided in London and had no con- nexion with the university. The Chancellor of the University having claimed conusance of the action in his court under the Oxford charter of 14 Hen. 8, confirmed by statute 13 Bliz. : — Held, that the privilege of the charter extended to cases in which the plaintiff resided outside the limits of the city of Oxford, and therefore that the claim must be allowed. Oinnett v. Whit- tingham, 16 Q. B. D. 761 ; 55 L. J., Q. B. 409 ; 34 W. E. 565— D. UNLAWFUL ASSEMBLY, What is.] — See O'Xelly v. Harvey, ante, col. 1066. VACATION. 8es PRACTICE. VACCINATION. Summons— Default of Appearance of Parent.] —By the Vaccination Act of 1867 (30 & 31 Vict. c. 84, B. 31), upon an information that a notice to the parent of a child to procure its being vaccinated has been disregarded, a justice may summon such parent to appear with the child before him, and "upon the appearance " the justice may make an order directing such child to be vaccinated. By s. 33, the 11 & 12 Vict, c. 43 (Jervis's Act), except s. 11 thereof, shall apply to all proceedings to be taken under the act :— Held, that an order for the vaccination of a child may be made under s. 31 of the Vacci- nation Act, 1867, on a parent duly summoned, even when he has failed to appear upon the summons. Beg. v. Cinque Ports (Jnstice') or Craiuford, 17 Q. B. D. 191 ; 55 L. J., M. C. 156 ; 34 "W. E. 789— D. VAGRANTS. "Wandering abroad to beg and gather Alms" — Colliers " on Strike."]— Colliers " on strike," who were householders in a colliery district, and had wives and families, went from house to house in a street of a town four miles distant, with a waggon inscribed " children's bread waggon," and begged for assistance in money or kind. They were not disorderly. Having been convicted under the Vagrant Act (5 Geo. 4, c. 83), s. 3, which ena.cts that every person wandering abroad in any public highway to beg or gather alms shall be deemed an idle and dis- orderly person : — Held, that, as it was not their habit and mode of life to wander abroad and beg, they were not withia the meaning of the act, and the conviction was wrong. Pointon v. Sill, 12 Q. B. D. 306 ; 53 L. J., M. C. 62 ; .50 L. T. 268 ; 32 W. R. 478 ; 48 J. P. 341 ; 15 Cox, C. C. 461— D. " Frequenting " a Public Thoroughfare with Intent to Commit a Felony.] — A man who "fre- quents " a public street, having in his mind the intent to commit a felony when and wheresoever opportunity arises, is liable to the penalties of the Vagrant Act, 5 Geo. 4, c. 83, s. 4, even though no opportunity should arise, and may be com- mitted as a rogue and vagabond, if the justices are satisfied on sufficient evidence, first, that he frequented the street, and secondly, that he did so with intent to commit a felony. The overt act, or the attempt to carry out the intent, is not an essential part of the ofEence against the act. The appellant was found and apprehended by two constables at about two o'clock in the morning in a public thoroughfare called Victoria Road, having in his possession a portion of a brass pump which appeared to have been wrenched ofE from the continuation pipe. Being stopped and questioned as to how he became possessed of it and whither he was taking it, he gave an account which proved to be false, and also a false name and address. Being charged before two justices on suspicion of having stolen the pump, and the proof failing, he was then 1925 VENDOE AND PUECHASEE. 1926 chaxged under 5 Geo. i, c. 83, s. i, with frequent- ing the street in question with intent to commit a felony ; and on proof that he was an associate of thieves, and had four years before been con- victed and sentenced to imprisonment for a felony, — although there was no proof that he had ever before been seen in the street in question, or that the pump had been stolen, — he was con- victed as a rogue and vagabond under the 4th section of the Vagrant Act, for "frequenting the public thoroughfare with intent to commit a ■felony," and sentenced to be imprisoned : — Held, that the evidence did not warrant the convic- -tion, inasmuch as it did not show a frequenting of "Victoria Road with intent to commit a felony. aarh V. Reg., or Meg. v. Clark, U Q. B. D. 92 ; 54 L. J., M. C. 66 ; 52 L. T. 136 ; 83 W. R. 226 ; 49 J. P. 246— D. Sogue and Vagabond — ^Astrology — Professing to tell Fortunes.] — ^The appellant was convicted under 5 Geo. 4, c. 83, s. 4, which makes punish- able as a rogue and vagabond " every person pretending or professing to tell fortunes . . . to deceive and impose on any of his Majesty's subjects." He had published advertisements in various newspapers offering to cast nativities, give yearly advice, and answer astrological questions. A detective wrote to him and received from him a circular setting forth the appellant's views of astrology as a science, and stating that by the positions of the planets in the nativity, and their aspects to each other, he was able to tell any applicant's fortune in the various events of life in return for certain remuneration. He never actually told anything to the detective, and there was no evidence to show whether or not he believed in the truth of his professions : — Held, that on this evidence the appellant was rightly convicted. Penny v. Samm, 18 Q. B. D. 478 ; 56 L. J., M. C. 41 ; 56 L. T. 235 ; 35 W. R. 379 ; 51 J. P. 167 ; 16 Cox, C. C. 173— D. VALUER. Who is,] — See Wilson amd Green, In re, ante, col. 52, and Bawdy, In re, ante, col. 48. liability for Negligence.] — See Cann v. Willson, ante, col. 1300. Valuation — For Purposes of Eating. ]^jS'ce PooE Law. • Metropolis Valuation Act. ] — See Meteo- POLIS. VENDOR AND PUR- CHASER. I. The Contract and Mattees Relating Thereto. 1. PaHies, 1926. 2. Mrmation of the Contract, 1927. 3. Particulara and Conditions of Sale. a. Description of Property, 19?7. J. Non-disclosure of Restrictive Co- venants, 1930. 0. Time, 1932. d. In Other Cases, 1933. 4. Title. a. In General, 1936. J. Expenses in Making, 1938. 5. Jurisdietion wnder Vendor and Pur- chaser Act, 1939. 6. Effect of Notice.— See Notice. II. Rescission of the Contract, 1940. III. Specific Pbepobmance of the Con- tract. — See Specific Perform ancb. IV. Rights and Duties op Vendor and PUBCHASEE. 1. In General, 1943. 2. Conveyance, 1944. 3. Purchase Money. a. Payment of, 1946. i. Interest on, 1947. c. Lien for, 1949. 4. Deposit, 1950. 5. Bight to Compensation. — See cases, ante, I. 3. V. Covenants Binding on Puschaseb, 1951. VI. Sale under Lands Clauses Act. — See Lands Clauses Act. VII. Sale by Order of the Covni.—See Practice, ante, col. 1488. I. THE CONTRACT AND MATTEES RELATING THERETO. 1. PARTIES. Death of Vendor before Completion — ^Whether a Trustee.]- Where a vendor has died before completion of the contract the court will not on a petition under the Trustee Act, 1850, make an order vesting the property in the purchaser and thereby in effect decree specific performance. Per Fry, L.J., a decree for sale or specific per- formance is a condition precedent to such a vesting order under the Trustee Act. Colling, In re, 32 Ch. D. 833 ; 55 L. J., Ch. 486 ; 54 L. T. 809 ; 34 W. R. 464— G. A. Defective Title— Trust for Sale— Equit- able Conversion.] — Testator (who married after 1834), by his will, gave all his real estate to trustees, on trust to convert and invest 1,0002. out of the proceeds of sale and pay the income to his widow for life, and then gave certain legacies, but did not dispose of the residuary proceeds of sale. The testator at the date of his death had contracted to sell certain lands for 3,000Z. After his death his trustees found that no title could be made to part of the lands, and rescinded the contract. They then put up the lands to which they had a title for sale by auction, and sold them for 2,500Z. to the same purchaser : — Held, that there was no conversion of the testator's real estate beyond the purposes declared by the will, and that the undisposed-of 3 Q 2 1927 VENDOE AND PUBCHASER. 1928 proceeds of sale resulted to the heir. Thomas, In. re, Thomm v. ITuwell, U Ch. D. 166 ; 58 L. J., Ch. 9 ; 55 L. T. 629— Kay, J. Sale by Tenant in Tail.]— &e Tenant, 5. Sale by Executors.] — /See Bxbcutoe and Administrator, I., 1. Sale by Trustees,]— &e Trust and Trustee, II., 5. Sale under Power in Mortgage.]— See MORT- GAGE, VI., 1. Sale under Settled Estates Act.]- ' col. 987. ■ . VENUE. See PRACTICE (TRIAL). VESTED INTEREST AND VESTING. See WILL. VESTRY. See ECCLESIASTICAL LAW". VICTORIA. See COLONY. VICE-ADMIRALTY COURTS. See SHIPPING. VOLUNTARY DEED. See FRAUD— SETTLEMENT. VOTE. See ELECTION LAW. WAGER. See GAMING AND WAGERING. 3 R 1965 WAIVER AND ACQUIESCENCE. 1966 WAGES. Of Servants,] — See MastUk and Sbevant. Of Seamen.] — See Shipping, TV. Proof in Bankruptcy.] — See Bankruptcy, IX., 1. On Winding-up of Companies.] — See Com- pany, XL, 8, b. WAIVER AND ACQUIES- CENCE. General Principles.] — Delay is not waiver, in- action is not waiver, though it may be evidence of waiver. Waiver is consent to dispense with the notice — Per Bowen, L.J. Selwyn v. Garjit, infra. A testator mortgaged leaseholds. On his death his executors took possession of his estate, including the leaseholds, and received the rents, and for a long time paid the interest on the mortgages, and applied the surplus of the rents for the benefit of the beneficiaries. The mort- gaged property proved insufficient to pay the mortgage debt, and in an action for tlie adminis- tration of the testator's estate the executors claimed to be credited with the payments made to the beneficiaries on the ground of acquies- cence on the part of the mortgagees : — Held, that the onus of proving acquiescence is on the person alleging it, and to show acquiescence he must show a standing by with a full knowledge of what was being done, and an acquiescence in the devastavit ; and that as this had not been proved, acquiescence by the mortgagees had not been established. Marsden, In re, Bowden v. Zayland, Giiis v. Layland, 26 Ch. D. 784 ; 54 L. J., Ch. 640 ; 51 L. T. 417 ; 33 W. E. 28— Kay, J. The manager of a bank, being in the habit of obtaining advances for the bank, obtained an advance for himself on his personal credit. The bank having gone into liquidation, the accounts were debited with this advance as made to the bank, and the bank, in ignorance of the facts, acquiesced in this statement of ac- count : — Held, that acquiescence and ratification must be founded on a full knowledge of the facts, and must be in relation to a transaction which may be valid in itself, and not illegal, and to which effect may be given as against the i party by his acquiescence in and adoption of the transaction, and that there was no ratifica- tion by the bank. Banqne Jacques- Cartier v. Banque D'Epargne, 13 App. Cas. Ill ; 57 L. J., P. C. 42— P. C. -What amounts to in general. See judgment of Fry, L.J., citing Willmatt v. Barler (15 Ch. ■ D. 96), in Russell v. Watts, 25 Ch. D. 559 ; 50 L. T. 673 .;. 32 W. R. 626— C. A. Company — Memorandnm of Association — Special Besolutions — Batification.] — The memo- randum of association of a company incorporated! under the Companies Act, 1862 (25 & 26 Vict, c, 89), stated that a portion of the shares were to have a right of receiving a dividend by pre- ference to the other shares, and that the pre- ference shares should have a right to a dividend of 7 per cent, per annum in priority over the ordinary shares, and to one-fifth of the remain- der of the net revenue after a deduction of a sum sufficient for paying 7 per cent, per annum on the ordinary shares ; and also that those shares should have a right to the rest of the dividend, whatever it might be, up to 7 per cent, after paying 7 per cent, to the preference shares and to four-fifths of the remainder of the net revenue, after deduction of a sum sufficient to pay the dividends on the preference and ordi- nary shares. The directors applied the profits of the company in substantial accordance with the provisions in the articles of association till November, 1872, when the company passed special resolutions which altered the priorities and payments of the net revenue as between the preference and ordinary shareholders, and which provided for the redemption of shares out of the surplus profits, and they were acted upon with- out any objection being raised to them by any of the members of the company till July, 1883, when the company passed a special resolution by which the original appropriation of the revenue as provided by the memorandum of association was restored : — Held, that even if the resolutions of 1872 would be valid if ratified by every member of the company, there was no evidence on which the court, acting as a jury, ought to infer that every member of the com- pany had ratified such resolutions with full knowledge of what had been done. Ashiury v. Watson, 30 Ch. D. 376 ; 54 L. J., Ch. 985 ; 54 L. T. 27 : 33 W. R. 882— C. A. Waiver of Misrepresentations in Pro- spectus.] — See Hale, Ex parte, ante, col. 349. Allowing Name to remain on Share Begister,] — See Yeoland Consols, !■», re, ante, col. 454. In Begistration of Company.] — See Pop- pleton. Ex parte, ante, col. 353. Forfeiture by Crown. ]- V. Power, ante, col. 596. -See Middleton {Lord) By Legatee — Payments wrongly made.]— iScf Siiii.es, In re, ante, col. 792. Injunction — Effect of Acciaiescence.] — See ante, cols. 986, 987. mortgage — Waiver, by whom.] — After a mortgagor has assigned his interest in the property mortgaged he cannot waive a notice as against the other persons interested. Selwyn v. Garfit, 38 Ch. D. 284 ; 57 L. J.. Ch. 609 ; 59 L. T. 233 ; 36 W. E. 513— Per Cotton, L.J. By mortgagor of Provision in Uortigag^ for his Benefit.]— 5ee Selioya v. Garjit, ante, col. 11258. — — Delay in following Assets — Claim against Besiduary Legatees.] — The right of mortgagees of a-eal estate whose security proves )nsuffi.cient, to come against the residoary legatees of the mortgagor, amongst whom He personal estate 1967 WAIVER AND ACQUIESCENCE. 1958 has been distributed, is a purely equitable right, and the court will not enforce it if there are circumstances which would make it inequitable to do so. Blahe v. Gale, 32 Ch. D. 571 ; 55 L. J., Ch. 559 ; 55 L. T. 234 ; 34 W. E. 555— C. A. A testator devised his freehold farm to two of his sons upon trusts for his children and issue, and directed that his unmarried daughters should be at liberty to carry on his farming business upon it, paying a rent of 600Z. He gave his residuary personal estate, in the events which happened, equally among his six children, the above two sons (who were executors as well as trustees) and his four daughters. The testator had made a first mortgage for 12,000Z., and a second mortgage for 2,400Z., and his personal estate was under 11,000^. Shortly after the death of the testator in 1859, the solicitors of the mortgagees made inquiry as to his affairs, and the solicitor of the trustees informed them of the state of the assets, and stated that the two unmarried daughters woijld probably carry on the farm for a time, and that their shares of the personal estate would no doubt afford them sufficient means to do so. The solicitors of the mortgagees wrote back to say that they should be glad to hear that the daughters were able to continue ai; the ifarm. The two daughters carried on the farm tUl 1863, when one pf them married, and the farm was then let by the trustees to her husband. The interest was duly paid till 1880, when, owing to agricultural de- pression, the security proved insufficient. The mortgagee for 2,400Z. in 1882 commenced aji action to enforce his security, and to prove for the deficiency against the mortgaged estate, seeking to charge the executors with a devastavit iif distributing the personalty without providing ior his mortgage debt. The court held the executors not guilty of devastavit, they were charged with their own shares of the residuary personalty as assets in hand, and the balance found due from them was applied in payment of the mortgage debt, without prejudice to any proceeding to make the other residuary legatees refund. The pla,intiff then brought this action j^ainst the four daughters to recover the shares of personalty which they had received : — Held, that the plaintiff could not recover, for that the mortgagees having assented to the distribution of the personal estate among the residuary legatees, could not, after this lapse of time, claim it back from them. li. Parent and Child — Entailed £gtate — Ex- clusion of Heir.]^/See Kiniore (^Ccmntess) v. Kintore (^EarV), ante, col. 16(04. Patent — Effect of— Action ioi Infringement.] — See Proctov v. Bennis, ante, coj. 1344. Surety — Action against — Acqniescence in jTregularities.] — See Durli^m (Mayor) v. Fowler, ante", col. 1532. , ., Statutory Bights by Person Benefited.] — Edward III., with the consent of .parliament, granted by charter to the citizens, of Loijidpn that no market within seven miles round about the city should be grsuited by the king or his heirs to any one. In 1682 (after an inquiry under a writ of ad quod damnum), by charter, Charles II. grauted tathe preiiecessorsinititle of tiie plaintiffs the right to hold a market in or about Spital Square on Thursdays and Saturdays. In 1683, in a proceeding in quo warranto, Charles 11. obtained a judgment cancelling the rights and privileges of the City of London. In 1688, James III granted to the then owner of the Spital Square market the right of holding the market on Mondays, Wednesdays and Saturdays, in lieu of Thursdays and Saturdays. By 2 Will. & Mary, sess. 1, c. 8, s. 4, all grants made in derogation of the rights of the city ?inoe the judgment in quo warranto were declared null and void. This act abrogated the grant of James II. : — Held, that the charter of Edward III. had the validity of a private act of Parliament ; that its inten- tion was that no market ^hould be granted for seven miles round the city in derogation of the city's privileges ; that there being evidence of long-continued user of the market at the least since 1723, the city must be taken to have waived their rights under the charter of Edyrard, III- and to have assented to the charter of Charles II. Great Eastern Railway v. Qotdsmid, 9 App. Cas. 927 ; 54 L. J., Ch. 162 ; 52 t^T. 270 ; 33 W. E. 81 ; 49 J. P. 260— H. L. (E.). Statutory Contracts ^ Bights under.] — See Price V. Bala and Festiniog Railuiay, ante, col. 1542. Trustees — Transfer of Securities to Executors of Cestui que trust.] — The trustees of a settle- ment advanced a sum of 6,887,2., part of the trust estate, upon separate "sub-mortgages of leasehold houses. This advance was made upon a valuation and report of 2n(l May, 1881, which purported upon the face of it to have been made at the request of the borrower, and which founded the supposed value of the houses upon a statement of rent which was merely prospec- tive, all the houses being unl,et at the time, and only just finished, nor were any deductions made in the valuation for insuraiice or repairs. On 18th December, 1883, the sub-mortgages were transferred pj the trustees to the executors of the deceased cestui que trust under the settle- ment. The houses were then found to have so deteriorated in value that their selling value was considerably less than the amount advanced upon them. On the 22nd May, 1884, the executors commenced an action against the trustees. The evidence showed that the execu- tors, when accepting the transfers, had no information of the circumstances under which the investmenthad originally been made : — Held, that the executors, by accepting the transfers under the circumstances which existed, must not be taken to have acquiesced in or adopted the securities. Smeihvrat v. Sifftingt, 30 Ch. D. 490 I 55 L. J., Ch. 173 ; 52 L. T. 567 ; 33 W. B. 496— V.-C. B. — Acquiescence in Possession of Fund.] — See Sootney v. Lom^, ante, col. 1888. Vendor's lien.] — Trustees of a charity con- veyed land in Yorkshire to E. and W., part of the purchase-money remaining unpaid, and al- lowed E. and W. to register the' conveyance, knowing that they wanted to do so in order to re-sell the land in lots :— Held, that the trustees had, by their conduct, precluded themselves from asserting their lien for unpaid purchase-money 3 H 2 1959 WAR— WAT'ER— Water Compcmy. 1960 against bonsl fide sub-purchasers without actual notice. Kettlcwell v. Watson, 26 Ch. D. 501 ; 53 L. J., Ch. 717 ; 51 L. T. 135 ; 32 W. K. 865— C. A. Voluntary Gift.]- col. 1922. ■Allcard v. Skinner, ante, WAR. Foreign Enlistment Act— Fittingf out of Ex- pedition.]— The offence of fitting out and preparing an expedition within the Queen's dominions against a friendly state, under s. 11 of the Foreign Enlistment Act, 1870, is suffi- ciently constituted by the purchase of guns and ammunition in this country, and their shipment for the purpose of being put on board a ship in a foreign port, with a knowledge of the pur- chaser and shipper that they are to be used in a hostile demonstration against such state, though the shipper takes no part in any overt act of war, and the ship is not fully equipped for the expedition within any port belonging to the Queen's dominions. Reg.y. Sandoval, 56 L. T. 526 ; 35 W. E. 500 ; 51 J. P. 709 ; 16 Cox, C. C. 206 — D. WARD OP COURT. See INFANT. WARRANTY. On Sale of Goods.]— /See Sale. Of Trutli of Answers— Life Policy.]— &e Thomson v. Weems, ante, col. 995. In Policies of Marine Insurance.] — See IN- SUEANCE, III. 5. In Bills of Lading.]— &e Shippino, VI. 3. WASTE. Liability of Tenant for Life.]— &e Tenant, I. Covenant to Bepair in Leases.]- (See Land- LOED AND Tenant. WATER. I. Watbk Company. 1. General Powers and Duties, 1960. 2. Supply of Water. a. Generally, 1963. h. Cutting ofE Water, 1964. e. Kates. i. Amount how Calculated, 1965. ii. Persons Liable, 1967. iii. Eecovery of, 1968. 3 Lieome Tax.— See Eeventte. 4. Mating to Poor Rate. — See POOE Law. II. Canal Compant, 1969. III. Ei-VBES AND Streams, 1970. IV. INJDEIES BY WATBE, 1972. L watee company. 1. GENEKAL POWERS AND DUTIES. Compensation — Interests injuriously affected — Apparent ambiguity.] — The appellant granted to D. certain mills on a stream forming the outlet to two lochs nearly surrounded by his property, with his " whole rights of water and water-power connected with the said mills ; " '• reserving " all his " rights in the lochs " and stream "except the rights therein connected with the mills." The storage capacity of the lochs had been increased by embankments made within the appellant's ground. The respondents, who were waterworks commissioners under a special act, acquired by agreement the rights of D. in the water, and ' under their compulsory powers took from the appellant a small piece of ground and a way-leave for a pipe, which they inserted in the stream and diverted the waters of the lochs to supply a town. S. 9 of the special act provided that a certain quantity of water sent down the stream daily should be held to be a sufficient compensation to the mill-owners and others. S. 10 reserved, inter alia, any rights the appellant had in Loch Humphrey. In a claim for compensation the arbitrator found the appellant entitled (1) to 50Z. for the land and wayleave ; and (2) " In the event of it being determined that the appellant had retained any right or interest in the waters of the lochs and the streams or any of them, and that he is now entitled to compensation in respect of such right or interest, I find 3,C00Z. to be the amount to be paid" in respect of the right or interest to be acquired from the appellaot " in the aforesaid waters and the embankments" at the lochs, including in the said sum of 3,000Z. the sum of 1,650Z. as the estimated price or value of the embankments : — Held, that the award was valid, inasmuch as the arbitrator had valued only one thing, the enhanced value of the water in the lochs, and had not valued, as a separate subject, the embankments, but had properly included in the 3,O0OZ., as a factor of value, the incidental right obtained by the respondents to have the embankments left standing. Slantyre {Lord) V. Baitie, 13 App. Cas. 631— H. L. (Sc). Minerals not Workable— Apprehended Injury.]- Bythe Waterworks Clauses Act, 1847, s. 25, the undertakers of waterworks shall from time to time pay fot any mines or ijiinerals not purchased by the undertakers which cannot be obtained by reason of making and maintaining the works, or by reason of apprehended injury 1961 WA.TEB,— Water Company. 1962 from the working thereof. The claimants were lessees of a coal mine, comprising four seams of coal running beneath land which the corporation had, under a special act incorporating the Waterworks Clauses Act, 1847, acquired in order to make a reservoir there. The claimants were working three of the seams, and preparing to sink a shaft to work the fourth, called the Cannel seam, and they gave notice of their intention to work the seams under and within the prescribed limits of the land of the corpora- tion, who thereupon gave notice to treat for the purchase of a part of one of the lower seams. An arbitrator found, in a special case stated for the opinion of the court, that the workings of the claimants had not yet approached the reser- voir so as to cause any present risk to the mines from it, but that, assuming the corporation to purchase and retain in situ the part of the seam for which they had given notice and no other coal, the claimants, by reason of the waterworks and of apprehension of injury therefrom to the Cannel seam, could not work or get more than 50 per cent, of the Cannel coal under the reser- voir or vrithin twenty yards of its boundary, and that a prudent lessee working without right to compensation would be compelled by reason of such apprehension of injury to abstain from working or getting more than 50 per cent, of the Cannel coal : — Held (Lord Esher, M.R., dis- senting), that on these findings the arbitrator was not justified in awarding compensation under the act for the 50 per cent, of the Cannel coal which could not be obtained. Holliday and Wakefield ^Mayor), In re, 20 Q. B. D. 699 ; 57 L. J., Q. B. 620 ; 59 L. T. 248 ; 52 J. P. 644— C. A. ( Compulsory Purchase of Surface — Clay — "Other Minerals."]— The 18th section of the Waterworks Clauses Act, 1847 (10 & 11 Vict. c. 17'), provides that " the undertakers shall not be entitled to any mines of coal, ironstone, slate, or other minerals under any land purchased by them." The appellants, by virtue of the act and a conveyance containing a reservation of the *• whole coal and other minerals in the land in terms of the Waterworks Clauses Act, 1847," purchased from the respondent a parcel of land for the purpose of erecting waterworks. Under the land was a seam of valuable brick clay. The respondent worked this clay in the adjoin- ing land, and having reached the appellants' boundary, claimed the right to work out the clay under the land purchased by the appellants : — Held (Lord Herschell, dissenting), that common clay, forming the surface or subsoil of land, was not included in the reservation in the act, and that the appellants were entitled to an interdict restraining the respondent from working the clay under the land purchased by them. Glasgow {Lord Provost) v. Fairie, 13 App. Cas. 657 ; 58 L. J., P. C. 33 ; 60 L. T. 274 ; 37 W. E. 627— H. L. (Sc). Bight to subjacent support of Pipes — Mines- Deposit of Plans. ] — The deposit of plans of their underground works, pursuant to ss. 19 and 20 of the Waterworks Clauses Act, 1847, is a condition precedent to the right of a company incorporated under that act to recover for injuries caused to their pipes by the ordinary and usual workings of a subjacent mine. South Staffordshire Water- works Company v. Mason, 56 L, J., Q. B. 255; 57 L. T. 116— D. Duty to fix proper Fire-plugs in Mains.] — The 38th section of the Waterworks Clauses Act, 1847 (10 Vict. c. 17), imposes no duty on the undertakers to provide a pipe of sufficient capa- city to carry a proper fire-plug in a place where their existing pipe is sufficient for that purpose, although, in the opinion of the justices em- powered by the section to settle the proper position of the fire-plugs in the district, it is, as a fact, essential that a fire-plug, should be placed there. Beg. v. Wells Water Company, 55 L. T. 188; 51 J. P. 135— D. Fire-plug placed in Street — ^Duty to keep in Espair.] — A fire-plug had been lawfully fixed in a highway by the defendants. Originally the top of the . fire-plug had been level with the pavement of the highway, but in consequence of the ordinary wearing away of the highway the fire-plug projected half an inch above the level of the pavement. The fire-plug itself was in perfect repair. The plaintiff, whilst passing along the highway, fell over the fire-plug and was hurt : — Held, that, as the fire-plug was in good repair, and had been lawfully fixed in the highway, no action by the plaintiff would lie against the defendants. Kent v. Worthing Local Board (10 Q. B. D. 118) commented on. Moore V. Lambeth Waterworks Company, 17 Q. B. D. 462 ; 55 L. J., Q. B. 304 ; 55 L. T. 309 ; 34 W. R. 559 ; 50 J. P. 756— C. A. Power to do Works in Street — Stop-valves in Footway.] — The 28th section of the Waterworks Clauses Act, 1847, provides that the undertakers may open and break up the soil and pavement of streets within their district and lay down and place pipes, conduits, service pipes, and other works and engines, and do all other acts which they shall from time to time deem necessary for supplying water to the inhabitants of the dis- trict. The B2nd section of the same act provides that, when the undertakers open or break up the road or pavement of any street they shall, with all convenient speed, complete the work for which the same shall be broken up and fill in the ground and reinstate and make good the road or pavement so opened or broken up : — Held, that the power given by the 28th section includes any works which the undertakers may deem necessary for the purpose of regulating the supply of water, and is not confined to the laying down of apparatus underground, but enables the undertakers to place such works on the surface of the street as may not be inconsistent with the substantial reinstatement of the road or pave- ment in its previous condition or create a nuisance ; and therefore that a water company was authorised by the section to place in the pavement of a street covers or guard-boxes to protect stop-valves placed for the purpose of regulating the supply of water in the communi- cation pipes, by which water was supplied to premises in the street, such covers or guard- boxes not creating a nuisance or being inconsis- tent with the substantial reinstatement of the pavement. JUast London Waterworks Company V. St. Matthew, Betlmal Green, 17 Q. B. D. 475 ; 55 L. J., Q. B. 571 ; 54 L. T. 919 ; 35 W. R. 37 ; 50 J. P. 820— C. A. See also Preston (Mayor') V. FuUwood Local Board, post, col. 1978. 1963 WATEB— Water Cdmpany. 1964 2. SUPPLY OP WATEB. a. G-enerally. Duty to Supply Pure Water — Water Pure in Mains, but Contaminated in Consumer's Pipes.] — • Undertakers for the supply of -water to Huddersfield were bound on certain Conditions to cause pipes to be laid down and water to be brought to 67ery part of the town, and by s. 35 of the Waterworks Clauses Aot, 1847 (10 & 11 Vict. c. 17), " to provide and keep in the pipes to be laid down by them a supply of pure and wholesome watfer, aufScient for the domestic use oE all the inhabitants of the town who should be entitled to demand a supply and should be willing to pay water-rate for the Same." By their special act the undertakers were empowered to make bye-laws with regard to the consumers' pipes. The bye-laws made under this power prescribed lead as the necessary material for every cbiisuiner's pipe, " not being of cast iron." The undertakers in accordance with their usual practice at the consuiner's request and cost laid down coihmunicatioh and service pipes of lead between their Inains and the plaintifE's house. The effect of the bye-laws and of s. 19 of the Waterworks Clauses Act, 1863 (26 & 27 Vict. c. 93), was that though the lead pipes might be the property of the plaiiitiff they were entirely under the control of the undertakers, and could not without their consent be interfered vrith by the plaintiff. Water was supplied by them to the plaintiff which was pure and wholesome in the mains but was of such quality that in its passage from the inains to the plaintiff's house it became contaminated by the lead and poisoned the plaintiff. The plaintiff having brought an action against the undertakers for damages for the injury to his health alleged a breach of the statutory obligation : — Held, that the obligation impbsed by s. 35 was to supply water which was pure and wholesome in the mains (and Lord Selborne and Lord Watson dissenting), that having complied with that obligation the under- takers were not (negligence being out of the case) liable to the plaintiff in this action. But held, by Lord Selborne and Lord Watson, that the undertakers were liable, on the ground that the Water contained some special and peculiar solvent of lead which made it poisonous after passing through the leaden pipes, although it would have been harmless if it could have been drunk direct from the mains. Milnes v. Sud- dersfield (^Mayor), 11 App. Cas. 511 ; 56 L. J., Q. B. 1 ; 55 L. T. 617 ; U W. E. 761 ; 50 J. P. 676— H. L. (E.). Duty of Owner to supply Water.]— Sect. 62 of the Public Health Act, 1875, enables rural sani- tary authorities to cause houses within their districts to be provided with a proper supply of water, where there is an available supply within a reasonable distance, and is not repealed in any way by s. 6 of the Public Health (Water) Act of 1878. The latter section enables such autho- rities to cause houses within their districts to be provided with a 'supply of water where there is not an available supply within a reasonable dis- tance, and does not apply to cases which come within the former section. Colifie Valley Water Company v. Trekarne, 50 L. T. 617 ; 48 J. P. 279 — D. By Meter — "Dwelling-house."] — A person requiring a supply of water in a house for domestic purposes and also for purposes for which no rate is fixed by the New Eiver Cdm- pany's Act, 1852, is not entitled, under s. 41 of the act, to require the company to supply by meter the water for domestic purposes as well as the water for other purposes :— Semble, that any house in which water is reqmred for do- mestic purposes is a "dwelling-house withm the meaning of s. 35 of the act, though no person sleeps or takes meals there. Cooke v. New River Company, 38 Ch. D. 56; 57 L. J., Ch. 383 ; 58 L. T. 830— C. A. Affirmed W. N. 1889, p. 167. Cost of Providing or Hiring.] — I'he Sheffield Waterworks Company was authorised to receive payment by measure and not by a rate for water supplied to fixed baths in private houses. There is no express provision in the principal or general acts as to how the water for such a purpose is to be measured, or whether the company or the consumer shall bear the cost of providing a meter or measuring the water ; but by the Waterworks Clauses Act, 1863, s. 14, where the company supply water by measure, they may let to a consumer a meter for such remuneration in money as they may agree upon : — Held, that a consumer taking water from the company for a fixed bath in his private house was bound at his own expense to measure the water so used by some automatic and self -regis- tering meter or other instrument, or in some other equally accurate way, and to record the amount from time to time taken. Shefwld Waterworks Company v. Bingham, 25 Ch. D. 443 ; 52 L. J., Ch. 624 ; 48 L. T. 604— Pearson, J. b. Cutting off Water. Non-payment of Bate. ] — P.'s landlord had agreed to pay water-rate, and had duly paid it, when P. received notice to quit. P. refused to quit, and the landlord requested the C. water- works company to cut off the water, which they did without any notice to P. ; — Held, that the magistrate was wrong in holding that the com- pany had acted in contravention of the statute 50 & 51 Vict. c. 21, s. 4. Chelsea Watervidrks V. Paulet, 52 J. P. 724— D. Action by Tenant for.] — Where a disnutehas arisen as to the amount of the water-rate pay- able by an occupier of premises to a water company (whose special act incorporated the Waterworks Clauses Act, 1847), the determi- nation of the annual value of the premises supplied, by two justices, under s. 68 of the act of 1847, is a condition precedent to the right of the occupier to sue the company for cutting off the water, and for the amount alleged to have been paid in excess. Whiting v. East London Waterworks Company, 1 C. & E. 331 — ^A. L. Smith, J. Injunction to Restrain.]— Where there is a dispute as to the annual value of a tenement for the purposes of water-rate, and the waterworks company threatens to discontinue the Supply, the court has, by virtue of the powers conferred upon it by the Judicature Act, 1873, s. 25, sub-s. 3, jurisdiction to grant an injunction, notwith- standing that the Waterworks Clauses Act, 1853, 1965 WATER— JFater Company. 1966 provides (s. 68) for the determination of such disputes by two justices, and imposes (s. 43) upon the company fixed penalties for refusal to supply. Hay ward v. East London Waterworks ' Company, 28 Ch. D. 138 ; 54 L. J., Ch. 523 ; 52 L. T. 175 ; 49 J. P. 452— Chitty, J. The court, however, in such a case, will decline to grant an injunction, except pending the pro- ceedings before the justices for the settlement of the dispute, or upon an undertaking by the plaintiff to commence the proceedings within a short period. The discontinuation of a water supply by a London waterworks company is an injury sufficiently irreparable to support an in- junction. Ih. c. Bates. i,' Amount Ihow Calculated. "Annual Value."] -A water company by a special act of 1826 were compellable to supply- water to certain dwelling-houses in the metro- polis for domestic purposes at certain rates per cent, per annum, payable "according to the actual amount of the rent where the same can be ascertained, and where the same cannot be ascertained according to the actual amount or annual value upon which the assessment to the poor's-rate is computed in the parish or district where the house is situated." By a special act of 1852 the company were compellable to furnish the water " where the annual value of the dwelling-house or other place supplied shall not exceed 200Z. at a rate per cent, per annum on such value not exceeding il. ; and where such annual value shall exceed 200?., at a rate per cent, per annum on such value not exceeding 'il." The occupier of one of the houses was lessee for a long term at a ground rent, and paid no rent except the gi-ound rent : — Held, that whether the later act repealed the provisions of the former or not, the case must be dealt with under the later act ; and that the words " annual value" in the later act meant "net annual value" as defined in the Parochial Assessments Act, 1836 (6 & 7 Will. 4, c. 96), s. 1 ;— Held, also, that " annual value " had the same meaning in the earlier as in the later act. Colvill v. Wood (2 C. B. 210) commented on. Dobbs v. Grand Jwiction Waierworhs Com/pany, 9 App. Cas. 49 ; 53 L. J., Q. B. 50 ; 49 L. T. 541 ; 32 W. K. 432 ; 48 J. P. 5— H. L. (E.). Annual Back-rent.] — By the terms of its special act a water company were to supply water at certain rates on the " annual rack-rent' of the house .... if the same be let at rack-rent, and on the annual value if and while the same is not let at rack-rent." An owner and occupier contended that his house not being let at an annual rack-rent, the water-rates pay- able by him ought to be assessed according to the annual value ; and that the annual value was the net annual value as distinguished from the gross value or gross estimated rental : — Held, that the words in the section " annual rack-rent " and " annual value " must be treated as equivalent ; that the legislature never intended to lay down two scales of charges, one for tenants of houses and the other for owner occupants ; and that an owner occupying his own house must pay water-' rates upon the gross estimated rental as distin- guished from the net annual value. Stevens v. Sarnet Gas and Water Company, 67 L. J., M. C. 82 ; 36 W. B. 924— D. Garden attached to Bwelling-lianBe.] — Section 68 of the Bristol Waterworks Act, 1862, enacts that the company shall furnish to every occupier of a private dwelling-house within their limits a sufficient supply of water for the domestic use of such occupier, at certain annual rents or rates according to the " annual rack-rent or value of the premises so supplied " — such supply (by s. 71) not to include, amongst other things, a supply of water " for watering gardens by means of a tap, tube, pipe, or other such like apparatus.'' And s. 32 of the Bristol Waterworks Amendment Act, 1865, enacts that, " if any dispute shall arise as to the amount of the annual rent or value of any dwelUng-house or premises supplied with water by the company, such dispute shall be decided by two justices ; provided that the amount of the annual rack-rent or value to be fixed by such justices shall not be less than the gross sum assessed to the poor-rate, or less than the rent actually paid for such dwelling-house or premises." A dwelling-house and garden in the occupation of the owner were assessed to the poor-rate as follows, — -"Gross estimated rental, 2402.," " Eateable value, 204Z." It was proved that the value of the house without the garden would be 10 per cent, less ; and that the owner contracted to pay and did pay \l. Is. annually for the watering by means of a pipe and tap in the garden which surrounded the dwelling-house and was occupied and assessed therewith : — Held, upon a case stated by the justices, that the words " gross sum assessed to the poor-rate " meant the " gross estimated rental," and not " rateable or net value ; " and that the water- rent was chargeable upon the ^oss estimated rental of " the premises," including the pleasure garden occupied with the house, and not merely upon the dwelling-house itself, — the extra charge for the garden supply being for using a pipe and tap. Bristol Waterworks Company v. Uren, 15 Q. B. D. 637 ; 54 L. J., M. C. 97 ; 52 L. T. 655 ; 49 J. P. 564— D. Freminm for Lease — Public House.] — By the special act of a water company it was provided that water should be supplied for domestic pur- poses by the company at a rate per cent, upon the annual value of the dwelling-house or oflier place supplied, that a supply of water for domestic purposes should not include a supply of water for, among other things, any trade or manufacture or business requiring an extra supply of water, and that the company might furnish water for other than domestic purposes on such terms ^s might be agreed on between the company and the consumer. The company supplied water for domestic purposes to a house occupied as a licensed public-house. The com- pany contended that the annual value of the premises as a licensed public-house should be taken as the basis of the water-rate payable in respect of such supply, and that therefore the fact of the premises being licensed, and a premium which had been paid for the lease of the premises as a public-house ought to be taken into consideration in fixing the value. The occupier contended that such water-rate should be based upon the value of the premises for domestic purposes only : — Held, that the contention of the company was correct. West Middlesex Water-. 1967 "WATER — Water Company. 1968 works Company v. Coleman, or Coleman v. Went Middlesex WaierworJ/s Company, 14 Q. B. D. 529 ; 54 L. J., M. C. 70 ; 52 L. T. 578 ; 33 W. E. 549 ; 49 J. P. 341— D. Minimum Charge.] — No dispute determinable by justices of the peace under s. 68 of the Water- works Clauses Act, 1847, can arise as to the annual value of premises where a water company are making the minimum charge which they are entitled to make under their special act. Colne Valley Water Company v. Treharne, 50 L. T. 617 ; 48 J. P. 279— D. ii. Persons Liable. Owner — TTnoccupied Honses not exceeding the Value of Twenty Pounds.] — The respondents, relying on s. 58 of their private act (15 & 16 Vict. c. clviii.), which extended the provisions of s. 72 of the VVaterworks Clauses Act, 1847, to houses not exceeding the annual value of 201., claimed water rates from the appellants as owners of certain houses under the annual value of 201. each, for two quarters, during the whole of which time such houses were unoccupied : — Held, that an owner's liability for rates under s. 72 of the Waterworks Clauses Act, 1847, ceases on the quarterly day of payment next after the house has become unoccupied, and that as s. 58 of the respondents' private act merely extended the provisions of that section to houses not exceeding the annual value of 20Z., the respondents were not entitled to recover. British Empire Mutual Life Assurance Company v. SouthwarJi and Vauxhall Water Company, 59 L. T. 321 ; 36 W. E. 894 ; 52 J. P. 758— D. Notice to obtain proper Supply — Non- compliance.] — A local authority caused a supply of water to be brought in main water-pipes along the street in which a house was situate, and gave notice to the owner of the house, under s. 62 of the Public Health Act, 1875, to obtain a proper supply and do all such works as might be necessary for that purpose. That notice was not complied with, and the local authority did not exercise the power given to them by that section of executing the works necessary to connect the house with the main. In an action by the water company for water-rates : —Held, that the defendant was liable, and that it was not a condition precedent to such liability that the works necessary to bring the water into the house should have been executed. Soutliend Waterworks Company v. Howard, 13 Q. B. D. 215 ; 58 L. J., Q. B. 354 ; 32 W. E. 923 \ 48 J. P. 469— D. Landlord or Tenant.] — In a lease of a shop and basement and of three rooms on the third floor of the same house, the lessor covenanted to pay " all rates and taxes chargeable in respect of the demised premises." Water was separately supplied by a water company to the shop and basement, and paid for by the tenant. In an action to recover from the lessor the amount so paid : — Held, that such a charge was " a rate " within the meaning of the covenant. Direct Spanish Telegraph Company v. Shepherd, 13 Q. B. D. 202 ; 53 L, J., Q. B. 420 ; 51 L. T. 124 ; 32 W. E. 717 ; 48 J. P. 550— D. iii. Recovery of. Dispute as to Annual Value-Jurisdiction of Justices.]— Upon the hearing before justices ot a summons to enforce payment of a water-rate made under a local act incorporating the Water- works Clauses Act, 1847, the justices have power, under s. 68 of that act, to determine a dispute as to the annual value of the premises rated. It is not necessary to their jurisdiction before making an order for payment of the rate upon such summons that the dispute should have been pre- viously determined in a separate proceeding before justices. New River Company v. Mather (10 L. E., C. P. 442) distinguished. Lea v. Aber- qamnnv Improvement Commissioners, 16 Q. B. D. 18 ; 55 L. JV, M. C. 25 ; 53 L. T. 728 ; 34 W. E. 105 ; 50 J. P. 165— D. See Colne Valley Water Company v. Treharne, supra. Bight of Distress — Power under Private Act- Subsequent Public Act. ]— A private act passed in 46 Ueo. 3, gave the West Middlesex Water- works Company power to levy a distress on default of payment by consumers of water of the water-rates mutually agreed upon in accord- ance with 46 Geo. 3, c. 119, s. 59. By an act passed four years later the company was empowered to charge a reasonable amount for the water, but there was no express enactment as to the mode of recovering that amount. Subsequently to the Waterworks Clauses Consolidation Act, 1847, another private act, 15 & 16 Vict. c. clix., was passed in part incorporating that act, but expressly stipulating that, "except as by this act is expressly provided, this act or anything therein contained shall not repeal, alter, in- terpret, or in any manner affect any of the pro- visions in force at the commencement of this act, of the recited acts, or any of them ; and, except only so far as is requisite for the execution of this act, all those provisions, and all powers, privileges, exemptions, and immunities of or for the benefit of any person or corporation thereby respectively created, conferred, or saved shall be and continue as valid and effectual as if this act had not passed." The act of 46 Geo. 3 was therein recited. The company issued its war- rant of distress on the plaintiff's premises, and ■ he brought an action for iUegal distress : — Held, that the power of the company to distrain was not taken away either inferentially by the Waterworks Clauses Consolidation Act, 1847, or expressly by the subsequent private act incorporating that act. Richards v. West Middlesex Waterworhs Company, 15 Q. B. D.660 ; 54 L. J., Q. B. 551 ; 33 W. E. 902 ; 49 J. P. 631 — D. Overcharge — Condition Precedent — Deter- mination of Justices.] — By a borough improve- ment act with regard to the supply of water, it was provided that, " The following acts and parts of acts (so far as they are applicable and not in- consistent with this act) shall be iricorporated with this act (that is to say) : The Waterworks Clauses Acts, 1847 and 1 863 (except the provi- sions thereof with respect to the amount of profit to be received by the undertakers when the waterworks are carried on for their benefit)." The Waterworks Clauses Act, 1847, provides : " A,nd with respect to the payment and recovery of water-rates, be it enacted as follows." Then comes s. 68, which provides that the rates are to 1969 WATEK — Canal Company — Rivers and Streams. 1970 be paid according to the annual value, and if any dispute arise as to such value, the same shall be determined by two justices. In the same act there are a series of sections (75 to 84) under the heading : " and with respect to the amount of profit to be received by the undertakers when the waterworks are carried on for their benefit, be it enacted as follows." Then follow ss. 75 to 8i : — Held, that s. 68 of the Waterworks Clauses Act, 1847, was not incorporated in the Borough Improvement Act, and that the settlement by two justices of a dispute as to the value was not a condition precedent to the plaintiff's right to bring an action for an overcharge. Slater v. Bvrnletj {Mayor), 59 L. T. 636 ; 36 W. E. 831 ; 53 J. P. 70— D. — — Money had and received — Compulsory Payment.] — The defendants, as sanitary au- thority for the borough of B., had demanded from the plaintifE, and the plaintiff had paid, a water-rate of SI. 15s. id., such rate being calculated on the " gross rental " of the plaintiff's premises. The plaintiff, contending that such rate ought to have been assessed on the " rate- able value " only, brought an action in the county court to recover the difference overpaid. The defendants had no power to distrain for the rates, but they had a power to stop the water supply for non-payment ; they had not stopped the water supply, and had not threatened to do so. The county court judge held that the pay- ment was not a voluntary one, and could be recovered back, on the ground that the de- fendants had a power to stop the water supply : — Held, that the payment was a voluntary one, and could not be recovered back. li. II. CANAI COMPANY. Sight to Support — Mines — Compensation for not Working — Bight of Action for Injury.] — By an act giving a company power to make a canal it was provided that nothing therein contained should affect the right of the owners of land to the mines and minerals lying within or under the lands to be made use of for the canal, and it should be lawful for such owners to work such mines not thereby injuring, prejudicing, or obstructing the canal ; and fur- ther, that if the owner or worker of any coal or mine should in pursuing such mine work near or under the canal, so as in the opinion of the com- pany to endanger or damage the same, or in the opinion of the owner or worker of the mine to endanger or damage the further working thereof, then it should be lawful for the company to treat and agree with the owner or worker, and in case of disagreement a jury was to be summoned to assess the amount such owner or worker ought to receive on being restrained from working such mine, and on payment of the amount assessed by the jury such owner or worker was to be perpetually restrained from working such mine within the limits for which satisfaction should by the jury be declared to extend. The defendants gave the company notice that they were going to work coal forming the support of the canal, and the company declined to purchase or pay compensation to the defendants for leaving the coal. The defendants thereupon worked the coal, and thereby damaged the canal : — Held, that the coal-owner or worker had a right under the act to require that compensa- tion should be assessed by a jury, but had no right to work the coal to the injury of the canal, and was liable to the company for the damage so caused. Dudley Canal Com^pany v. Graze- irooJt (1 B. & Ad. 59) distinguished. Lancashire and Yorkshire Bailway v. Knowles, 20 Q. B. D. 391 ; 57 L. J., Q. B. 150 ; 52 J. P. 340-C. A. Affirmed 14 App. Cas. 248— H. L. (B.). Towing Path — Dedication to Public.]— Land acquired by a company under an act of Parlia- ment for the purposes of their undertaking as specified by such act may be dedicated by them as a public highway, if such use by the public be not incompatible with the objects prescribed by the act. Therefore, where land was acquired and used by a canal company under their statutes for the purposes of a towing-path, and it appeared that the use of it as a public footpath was not inconsistent with its use as a towing-path by the company: — Held, that the company could dedicate the land as a public footpath subject to its use by them as a towing-path. Hex v. Leahe (5 B. & Ad. 469) approved and followed. Grand Junetion Canal Company v. Petty, 21 Q. B. D. 273 : 57 L. J., Q. B. 572 ; 59 L. T. 767 ; 36 W. K. 795 ; 52 J. P. 692— C. A. Liability for Damage by Percolation,] — See Evans v. Manchester, Slieffield and Lincolnshire Railway, post, col. 1973. III. BIVEBS AND STBEAMS. Construction of Conveyance — Bed of Biver ad medium filum — Presumption.] — The pre- sumption that, by a conveyance describing the land thereby conveyed as bounded by a river, it is intended that the bed of the river, usque ad medium filum, should pass, may be rebutted by proof of surrounding circumstances in relation to the property in question which negative the possibility of such having been the intention. The owners of a manor by conveyances made respectively in 1767 and 1846 granted to pur- chasers pieces of riparian land fronting a river, the bed of which formed parcel of the manor. It was proved that, prior to the earliest of the conveyances, a fishery in the river fronting the lands conveyed had for a very long time back been from time to time let to tenants by the lords of the manoi? as a separate tenement, dis- tinct from the riparian closes ; and that at the date of the conveyances in 1846 such fishery was actually under lease to tenants. The grantees under the before-mentioned convey- ances, and their successors in title, had, until the acts complained of in the action, never claimed or exercised any right of fishing over the bed of the river by virtue of any right of soil or otherwise, but the owners of the manor or their tenants of the fisheiy had always fished without interruption : — Held, that under the circumstances the conveyances ought not to be construed as passing any portion of the bed of the river to the grantees. Devonshire (JHulte) v. PaUinson, 20 Q. B. D. 263 ; 57 L. J., Q. B. 189 ; 58 L. T. 392 ; 52 J. P. 276— C. A. Though the presumption that a grant of land described as bounded by an inland river passes 1971 the adjoining half of the bed of the river may be rebutted by circumstances which show that the parties must have intended it not to pass, it will not be rebutted because subsequent circumstances, not contemplated at the time of the grant, show it to have been very dis- advantageous to the grantor to have parted with the half bed, and if contemplated would probably have induced him to reserve it ; nor is the presumption excluded by the fact that the grantor was owner of both banks of the river. Micltletliwait v. JVowlay Bridge Company, 33 Ch. D. 133 ; 55 L. T. 336 ; 51 J. P. 132— C. A. M. being entitled to lands on both sides of a river, sold and conveyed to L. a piece of land the dimensions of which were minutely given in the conveyance, and which was therein stated to contain 7752 square yards, and to be bounded on the north by the river, and to be delineated on the plan drawn on the deed, and thereon coloured pink. The dimensions and colouring extended only up to the southern edge of the river, and if half the bed had been included the area would have been 10,031 square yards instead of 7,752. The deed contained various reservations for the beneiit of M., but contained nothing express to show whether the half of the bed was intended to pass or not. M. was at the time owner of a private bridge close by, from which he received tolls. Thirty years afterwards a bridge was pro- jected to cross the river from L.'s land. The plaintiffs, who had succeeded to all M.'s property in the neighbourhood, brought their action to restrain the making of the new bridge. If the grant to L. passed half the bed, no part of the new bridge would be over land of the plaintiffs : — Held, that the presumption that the grant in- cluded half the bed was not rebutted, and that an injunction could not be granted on the ground that the erection of the bridge would be a tres- pass, lb. Obstruction — Actual Damage not essential.] — In an action for wrongfully obstructing the flOW'of a river by increasing the height of a weir, whereby the plaintiff's land abutting on the river was flooded, if the effect of the acts com- plained of was to raise the water of the river as it flowed past the plaintiff's land above the height at which it ought of right to have flowed, such raising would be an actionable wrong, and would entitle the plaintiff to a iindiug in his favour with nominal damages, actual damage not being essential in order to maintain the action. Williams v. Morland (2 B. & C. 910) not followed. MeGlo-ne v. Smit%, 22 L. K., Ir. 559— Ex. D. Riparian Proprietors — Variation of User.] — The owner of land not abutting on a river with the licence of a riparian owner took water from the river, .ind after using it for cooling certain apparatus returned it to the river unpolluted and undiminished : — Held, that a lower riparian owner could not obtain an injunction against the landowner so taking the water, or against the riparian owner through whose land it was taken. Kensit v. Oreat Eastern Railway, 27 Ch. D. 122 ; 54 L. J., Ch. 19 : 51 L. T. 862 ; 32 W. K. 885— C. A. Observations on the rights which can be acquired by a riparian owner in an artificial stream. lb. YfATEB^Injuries by. ^^"^^ Liability of Conservancy Commissioners for Damage to Lands adjoining Eeclaimed Lanos.j —The owner of a farm between which and a tidal river were lands that had been reclaimed by conservancy commissioners from the nver, sued such commissioners for damage caused to his farm by the river overflowing a sea-wall be- tween the reclaimed lands and the nyer, and flowinc over the reclaimed lands on to his farm : —Held, that as the commissioners were by then- acts under the obligation to maintain and repair the sea-wall, they were liable not on^ for damage caused to the reclaimed lands, but to lands beyond such lands, by reason of the sea- wall being insufficient in height to prevent an overflow of the river, and further that the plaintiff was not deprived of his right of action by the fact of the water having flowed from the reclaimed lands on to his farm in consequence of his landlords having made a cutting through an embankment in order to obtain access to the reclaimed lands. Bramlett v. Tees Conservancy Commissioners, 49 J. P. 214— D. Navigation — Bye-law — Obstruction of Ves- sels.] — The W. navigation trustees having power to make bye-laws for the ordering and good government of the navigation of the river W., made a bye-law that the person having charge of a vessel shall not lie up or moor the same so as to prevent other vessels passing. S.'s vessel was moored on one side, the I. was moored on the other side, and each said it was the other's turn to remove for a third vessel to pass, but neither moved :— Held, that S. was rightly convicted under the bye-law, and it was no answer to set up a custom about each obstructing vessel having to remove alternately, and that he had removed the time previous. Stubbs v. Milditch, 51 J. P. 758— D. Waterman's Act— Barge of 50 Tons.]— Under the Thames Conservancy and Watermen's Acts, and bye-laws thereunder, if a barge under weigh exceeds 50 tons, there must be two qualified licensed watermen on board, and one is not sufficient though assisted by another unqualified man. Perhins v. Gingell, 50 J. P. 277 — D. Eight of Easement.]— /See Easement, III. Pollution otI—See Nuisance. IV. INJUEIES BY WATEE. Liability of Conservancy Commissioners.]— See Bramlett v. Tees Conservancy Commissio<>iers, supra. Sending Water on adjoining Lands for Pro- tection of Defendants' Premises.] — By reason of an unprecedented rainfall a quantity of water was accumulated against one of the sides of the defendants' railway embankment, to such an ex- tent as to endanger the embankment, when, in order to protect their embankment, the defen- dants cut trenches in it by which the water flowed through, and went ultimately on fco the larid of the plaintiff, which was on the opposite side of the embankment and at a. lower level, and flooded and injured it to a greater extent than it would have done had the trenches BOt 1973 'WAY-^-Highu-ays. 1974 been cut. In an action for damages for such Injufy, the jury found that the cutting of the trenches was reasonably necessary for the pro- tection of the defendants' property, and that it was not done negligently : — Held, that though the defendants had not brought the water on their land, they had no right to protect their property by transferring the mischief from their own land to that of the plaintiff, and that they were therefore liable. Wliallcy v. LancasJiire and Toriesliire Railway, 13 Q. B. D. 131 ; 58 L. J., Q. B. 285 ; 50 L. T. 472 ; 32 W. K. 711 ; 48 J. P. 500— 0. A. Fercolation from one House to adjoining House.]— A. allowed water to collect in the cellar of his house. The water percolated through the ground and injured the cellar of the adjoining house belonging to B. : — Held, that B. had a right of action against A. in respect of the injury so done. Ballard v. Tom- linson (26 Ch. D. 194) dissented from. Snow v. Whitehead, 27 Ch. D. 588 ; 53 L. J., Ch. 885 ; 51 L. T. 253 ; 33 W. K. 128— Kay, J. Percolation — Compensation — Company with Statutory Powers.] — ^A company with statutory powers suffered water to percolate from their canal into an adjoining mill and cause damage. Such percolation arose in the first instance from a subsidence of the land caused by the working of a mine-owner under both the canal and the mill, and could not have been foreseen or pre- vented by the company by any reasonable means at any reasonable cost : — Held, that the canal company were nevertheless guilty of negligence in not making good the damage when it occurred, and must pay compensation to be assessed as provided by the Canal Act, but that it was not a case for granting an injunction against the com- pany to restrain the percolation of water. Evans V. MancJiester, Sheffield, and Lineolnshire Rail- way, 36 Ch. D. 626 ; 57 L. J., Ch. 153 ; 57 L. T. 194 ; 36 W. E. 828— Kekewich, J. Measure of Damages.]— <&« RuH v. Victoria Gramng Doch Company, ante, col. 601. WATERMEN. Number re^iuired in Navigation,]— iSec Per- Mtts V. Oingell, supra. WAY. I. Highways. 1. Creation of, 1974. 2. Stoppage and Diversion of, 1975. 3. User of. a. Obstruction, 1976. J. Encroachment, 1978. c. User of Locomotives, 1978. 4. Power and Liability of Authority, 1978. 5. Rates, 1979. 6. Repair. a. Obtaining Materials, 1980. b. Extraordinary Traffic, 1980. c. Liability of County Authority, 1981. d. Liability in other Cases, 1983. e. Summary Proceedings for Noil- repair, 1984. /. Indictment for Non-repair, 1984. II. TuENPiKE Roads, 1985. III. Beidses, 1985. IV. Eights op Wat. — See Easement, I. V. Egad under Public Health Act.— See Health, II., 2. VI. EoAD IN Metropolis. — See Metropolis, I., 3, b. T. HIGHWAYS. 1. CEEATION OF. Dedication to Public— Tolls.] — The promoters of an intended road by deed declared that the road should not only be enjoyed by them for their individual purposes, but " should be open to the use of the public at large for all mannier of purposes, in all respects as a common turnpike road," but subject to the payment of tolls by the persons using it : — Held, that this was not a, dedication of the road to the public, and that the road was not a, highway repairable by the inhabitants at large under s. 150 of the Public Health Act, 1875. Ansterberry v. Oldham Cor- poration, 29 Ch. D. 750 ; 55 L. J., Ch. 633 j 53 L. T. 543 ; 33 W. E. 807 ; 49 J. P. 532— C. A. Semble, an individual cannot, without legisla- tive authority, dedicate a road to the public if he reserves the right to charge tolls for the user ; and the mere fact that a number of persons form themselves into a company for making and main- taining a road, and erect gates and bars and charge tolls, does not make the road a " tutnpike road," in the sense of a turnpike road made such by act of Parliament, and so dedicated to the public. lb. — '— Land Vested in Company for Statutory Purposes.] — Land acquired by a company under an act of Parliament for the purposes of their underlaking as specified by such act may be dedicated by them as a public highway, if su'ch use by the public be not incompatible with the objects prescribed by the act. Therefore, where laud was acquired and used by a canal company under their statutes for the purposes of a towing- path, and it appeared that the use of it as a public footpath was not inconsistent with its use as a towing-path by the company : — Held, that the company could dedicate the land as a public footpath subject to its use by them as a towifig- path. Rex V. Zeahe (5 B. & Ad. 469) approved and followed. Grand Jimetion Canal Company V. Petty, 21 Q. B. D. 273 ; 57 L. J., Q. B. 572 ; 59 L. T. 767 ; 36 W. E. 795 ; 52 J. P. 692— C. A. Main Eoad — Application for Provisional Order — Ordinary Highway.] — The 16th section of the 1975 WAY- Highways and Locomotives Amendment Act, 1878, provides as follows : — "If it appears to a county authority that any road within their county which, within the period between the 31st of December, 1870, and the date of the passing of this act, ceased to be a turnpike road, ought not to become a main road in pursuance of this act, such authority shall, before the 1st of February, 1879, make an application to the Local Government Board for a provisional order declaring that such road ought not to become a main road." The section further provides that, " Subject as aforesaid, where it appears to a county authority that any road within their county, which has become a main road in pur- suance of this act, ought to cease to be a main road and become an ordinary highway, such authority may apply to the Local Government Board for a provisional order declaring that such road has ceased to be a main road and become an ordinary highway " : — Held, that a road which had ceased to be a turnpike road within the period specified by the first of the above- mentioned provisions, and had become a main road, there being no application for a provisional order before the 1st of February, 1879, was not excluded from the operation of the second of the above-mentioned provisions, and that the Local ' Government Board had, therefore, jurisdiction to make a provisional order declaring such road an ordinary highway upon an application made subsequently to the 1st of February, 1879. Reg. V. Local Government Board, 15 Q. B. D. 70 ; 54 L. J., M. C. 104 ; 53 L. T. 194 ; 49 J. P. 580— C. A. liberties merged in Counties — County Authority — Recorder.] — ^Liberties merged into counties by the Highways Act, 1862, are revived by the Highways Act, 1878, and so far as that act applies are to be deemed separate " coun- ties." The "county authority " for such liberties are the justices of those liberties in quarter ses- sions assembled. A recorder of a borough to which such liberties belong, when holding his quarter sessions, represents the justices of such counties in quarter sessions assembled, and he must be deemed to be the "county authority" under the Highways Act of 1878, and be required to exercise the jurisdiction of such " county au- thority." The plea that there is no machinery for exercising such authority is not suiBcient to excuse the authority having such jurisdiction from actiug when properly applied to for such purpose. Beg. v. Dover (^Recorder'), 32 W. E. S76 ; 49 J. P. 86— D. 2. STOPPAGE AND DIVERSION OF. Expenses — Eight to employ Solicitor.] — The charges of a solicitor employed by an urban authority to conduct proceedings at the instance of an individual for the stopping up or diverting a highway under ss. 84, 85 of the Highway Act, 5 & 6 Will, 4, c. 50, are not "expenses" within B. 84 of the act, so as to be recoverable in the manner pointed out by s. 101 ; — Semble, that all the steps required by s. 85 to be taken for the purpose of obtaining the order of sessions, are ministerial acts which ought to be done by the surveyor of the local authority. United Land Highways. 1970 Company v. TottenJiam Board of health, 13 Q. B D 640 ; 53 L. J., M. C. 136 ; 32 W. E. 798— D. 3. USEE OF. a. Obstniotion. Eoller left on Boadside.]- The defendant left an agricultural roller between the hedge and the metalled part of the road, having removed it from a field on the opposite side of the road for his own convenience. A pony, drawing a car- riage in which the plaintiflE's wife was riding, shied at the roller, upset the carriage, and the plain- tifE's wife was killed :— Held, that the roller was an obstruction to the highway ; that it was an unreasonable user of the highway by the defen- dant, and that the plaintiff was entitled to re- cover damages for the death of his wife under Lord Campbell's Act. WilMns v. Bay, 12 Q. B. D. 110 ; 49 L. T. 399 ; 32 W. E. 123 ; 48 J. P. 6— D. User of Traction-Engine on Narrow Boad.] — Persons using a traction-engine and trucks on a highway may be indicted for a nuisance, if they create a substantial obstruction and occasion delay and inconvenience to the public sub- stantially greater than such as would arise from the use of carts and horses. Reg. v. Chittenden, 49 J. P. 503; 15 Cox, C. C. 725 — Hawkins, J. The owners are responsible for the general management of the engine by their servants. li. "Wilful Obstruction."] — The appellant was summoned under the provisions of s. 72 of the Highway Act, 1835, for wilfully obstruct- ing the free passage of a public highway at Sedgley. It appeared that he had marched into the Bull Eing (which was a highway) at the head of a band, and had taken up his position there, and had addressed a crowd for an hour and a half, during which period no person could, without considerable inconvenience and danger, have either walked or driven across that part of the highway where the appellant and his band and the crowd were stationed. The magistrate was of opinion that, although there was a passage round the crowd available for traffic, the appellant was not entitled to appropriate to himself any part of the highway ; accordingly he was convicted : — Held, upon the above facts, that there was evidence on which the magistrate could properly convict the appellant of an offence under s. 72 of the Highway Act, 1835. Horner or Homer v. Cadman, 55 L. J., M. C. 110 ; 54 L. T. 421 ; 34 W. E. 413 ; 50 J. P. 454 ; 16 Cox, C. C. 51— D. Magistrates convicted the appellant of the offence of "wilfully obstructing the free passage of a highway," under 5 & 6 Will. 4, c. 50, s. 72, although the appellant had not done any act of obstruction : — Held, that an omission to remove an obstruction after notice to remove it might amount to wilful obstruction. Gully v. Smith, 12 Q. B. D. 121 ; 53 L. J.. M. C. 35 ; 48 J. P. 309— D. Ditches out at side of Boad.] — The right of the public to use a highway extends to the whole road, and not merely to the part used as via 1977 WAY — Highways. 1978 trita. Therefore, ditches fifteen inches wide and ten inches deep, cut completely across the strips of grass land at the sides of roads, so as to amount to a danger to persons walking along the strips, amount to a nuisance and obstruction. JTicol T. Beaumont. 53 L. J., Ch. 853 ; 50 L. T. 112— Kay, J. Making Fires near — Sanger to Passengers.] — ^H. was charged under 5 & 6 Will. 4, c. 50, s. 72, with unlawfully assisting in making a fire on the highway. He was rolling a tar-barrel that was alight, along a road, but no one was injured or endangered : — Held, that H. could not be con- victed, as it was essential to the offence that passengers should be endangered or interrupted. mil V. Somerset, 51 J. P. 742— D. Highway within metropolitan Area — Power of Police to Prosecute.] — A person, by singing hymns, occasioned a crowd to assemble, and thereby obstructed a certain highway within the metropolitan police district. An informa- tion was accordingly preferred against him by an inspector of police, under s. 72 of the High- way Act : — Held, that the provisions of s. 72 of the Highway Act were applicable to highways within the metropolitan area : — Held, also, that a prosecution under s. 72 of the act might be initiated by anyone, and therefore that the pro- ceedings taken by the police were valid. Back V. Holmes, 57 L. J., M. C. 37 ; 56 L. T. 713 ; 51 J. P. 693 ; 16 Cox, C. C. 263— D. Kuisance — Statutory Eight — Aeeident.] — The defendants were the owners of a quay, over which there was a public right of way to their docks. The Great Eastern EaUway Company by their private act were empowered to, and did enter into an arrangement with the de- fendants to lay tramways connecting the docks with the railway system. The com- pany were to keep the tramways in good work- ing order, under the Tramways Act, 1870. The company, as promoters, gave notice to the defendants of their intention to open and break up the road for the purpose of doubling the rails at a particular point. The company did break up the highway for their tramway purposes. The plaintiff was injured by being thrown from his cart through the defective condition of the roadway at the place where the works were being carried out, and brought his action for compensation against the defendants as owners of the highway. The jury at the trial found that the accident to the plaintiff had been caused by the negligence of the railway company, who were in possession of the spot where the occur- rence took place, and that the roadway was in a defective condition owing to a breach of duty on| the part of the railway company, and gave the, plaintiff substantial damages : — Held, that as' the railway company were carrying out their; works not under the orders or as licensees ofi the defendants, but under their statutory' powers, and were in sole possession of the place, where the accident happened, which was entirely under their control, and the negligence causing' the accident was that of the railway company and not of the defendants, the verdict ought to be entered for the defendants. Barkam v. j^swich Booh Commissioners, 54 L. T. 23 — Huddleston, B. Breaking up without Statutory Autho- rity — Prescription.] — The corporation of P., who had .no parliamentary powers for the purpose, supplied water' to the adjoining urban district of F., and claimed the right to enter upon and break up the streets of F., when- ever occasion should require for the purpose of repairing their water pipes, relying, as regarded some of the streets, on alleged irrevocable licences granted by the predecessors of the local board of F. (i.e., the surveyors of highways), and as regarded other streets on prescription : — Held, (1) that the claim of the corporation was to commit a nuisance ; (2) that it was not in the power of the surveyors of highways to grant the alleged licences ; (3) that, thei-efore, as a grant could not be presumed, the corporation could not obtain the right claimed by pre- scription. Preston (^Mayor') v. Fulwood Local Board, 53 L. T. 718 ; 34 W. R. 196 ; 50 J. P. 228 — North, J. Cp. East London Waterworks V. iS^. Matthew's, Bethnal Green, ante, col. 1962. II., 4. Duty to Protect.] — See Negligence, b. Encroaclinient. Limitation of Time for Conviction.] — By 9 Geo. 4, c. 77, s. 18, no person may be convicted of an offence against 3 Geo. 4, c. 126, s. 118 (which enacts that any person causing an encroachment within a certain distance of the centre of a turnpike road shall be subject to a penalty), after the expiration of six months from the time when such offence shall have been committed. The period of six months mentioned in the section begins to run from the time that a substantial encroachment of the highway has been caused, and not from the final completion of the encroaching building or other encroach- ment. JSyde V. Entmstle, 52 L. T. 760 ; 49 J. P. 517— D. c. TTser of liocomotives. Tramway — Licence of County Authority.] — The steam engines auhtorised by statute to be used on tramways are not locomotives within the meaning of the Highways and Locomotives (Amendment) Act, 1878, s. 32, and, therefore, do not require to be licensed by the county autho- rity. Bell V. Stockton Tramways Company, 51 .T. P. 804— D. 4. POWER AND LIABILITY OF AUTHORITY. " Drain " — " Watercourse " — Dumhwell.] — A dumbwell, or shaft sunk into a porous stratum of chalk or gravel, into which surface water from a highway is conducted by pipes, and from which it percolates away through the subsoil, is not a " drain or watercourse " within the meaning of s. 67 of the Highway Act, 1835, and a highway authority having the powers of that act is con- sequently not authorised by that act to construct such a dumbwell in private land near to the highway as part of its drainage system, and to clean it out when necessary. Croft v. Rickmans- worth Highway Board, 39 Ch. D. 272 ; 58 L^.J., Ch. 14 ; 60 L. T. 34— C. A. 1979 Actions — Local Venue.] — The provisions of tile Highways Act, 1835, s. 109, as to local venae are abolished by the Rules of Court, 1875, Ord. !JLKXVI., r. 1. Phelips v. Haiham, District Boari, 1 C. & E. 67— Coleridge, C. J. Notice of Action.] — The provision of the above section as to notice of action does not apply where the principal object of the action is an injunction. Ih. Dissolution of Highway District.] — By the dissolution of a highway district, in respect pf which a highway board had been constituted under the Highway Act, 1862, the highway board, though it ceases to have any control over the highways in its district, does not cease to exist as a corporate body for the performance of its other duties, such as those of suing or being sued, and of acting generally for the purpose of Ending up its affairs. Reg. v. Essex J J., 11 Q. B. D. 704; 49 L. T. 394 ; 32 W. E. 220— C. A. AflBrming 52 L. J., M. C. 124 ; 47 J. P. 725— D. 5. BATES. Publication — Signature and Allowance.] — Where a highway rate, niiade by a waywarden of » highway district under 27 & 28 Vict. c. 101, s. S3, has been published lilse a poor-rate, it is not necessary that it should also have been signed and allowed by justices like a poor-rate. Worth- ington V. Gill, 49 J. P. 629— D. ITrban District — Part of Parish excluded — Amount.]— By s. 29 of the Highway Act, 1835, no highway rate to be levied or assessed shall ^xQeed at any one time the sum of V)d. in the pound, or 2s. Sd. in the pound in the whole in stny one year, without the consent of four-fifths of the inhabitants assembled at a specially called meeting. By s. 216 of the Public Health Act, 1875, where parts of a district are not rated for works of paving, water supply, and sewerage, or for some of them, the cost of repair of highways in those parts shall be defrayed out of a highway rate to be separately assessed and leyied in those part? by the urban authority as surveyor of high- ways ; provided that where part pf a P^ris^ is included within an urban district, a,nd the ex- cluded part was, before thp constitution of that district, liable to contribute to the highway rates for such parish, such excluded part shall, for all highway purposes, be treated as forming part of such district. The hamlet of G. was formerly a " parish " maintaining its own highways. Prior to 1875 part of the hamlet was formed into a local government district, called the inner dis- trict, with a local board, and became an urban distriet under the Public Health Act, 1875. Part of the hamlet, called the outer district, was excluded from it. The local board of the inner district repaired the highways in the outer dis- trict, and separately assessed a rate of 3s. id. in the pound on the inhabitants of the outer dis- trict, without first obtaining the consent of four- fifths of them. The appellants objected to the validity of the rate : — Held, that the consent of four-fifths of the inhabitants of the outer dis- trict was rendered unnecessary by s. 2)6 of the Public Health Act, 1875, and that the rate was valid. Dyson v. Oreetland Local Board, 13 Q. WAY — Highways. 1980 B. D. 946 ; 53 L. J., M. C. 106 ; 48 J. P. 596- C. A. Affirming 48 L. T. 636— D. County Bate— Liability- Borough ex- tended.]— By a local act passed in 1874, the limits of the borough of Middlesborougb were extended. By s. 20 of that act it was enacted that the extended area " shall be exempt from all county rates save only in respect of the pur- poses for which any county rates are now leviable within the existing borough." At the time of the passing of that act general county rates were leviable within the existing borough for all pur- poses for which general county rates could be levied in any part of the riding. By s. 13 of the Highways and Locomotives (Amendment) Act, 1878, any road which has ceased to be a turnpike road in manner described by the act shall be deemed to be a main road, and one-half o^ the expense incurred by the highv^ay authority in the maintenance of such road shall be con- tributed out of the county rate : — Held, that as within the borough existing at the time of the passing of the local act general county rates were leviable for all purpose?, the saving of such liability rendered the exemption in s. 20 in- operative ; and therefore the inhabitants of the extended area of the borough were not exempt from liability to pay county rates for the rnain- tenance of a road under s. 13 of the Highways and Locomotives (Amendment) Act, 1878. ^/Ifid- dlesborougJi Overseers v. Yor Rehire (iV. iJ.) Jus- tices, 12 Q. B. D. 239 ; 32 W. E. 671— 0, A. 6. EEPAIE. it,. Obtaining' materials. Order for — Place should be Specified.]^- A highway surveyor applied under 5 & 6 Wm. 4, c. 50, s. 54, for an order to take materials for high- way repairs out of a wood of H. The wood consisted of thirteen acres, and was part of a larger wood of a hundred acres : — Held, that the order was bad for not specifying the part of the wood where the materials were to be taien. Sooper V. Hawkins, 51 J. P. 246^D. b. Extraordinary TrajKc. What is.] — Justices having made an ©ider \ipon the appellants to pay the expenses of repairing a highway as extraordinary expenses within s. 23 of the Highways and Locomotives (Amendment) Act, 1878, it appeared that the road, called Carter's Hill, was used solely for agricultural traific, and was in the .parish of S., which, with some other parishes in the respon- dent's district, was situate upon a range of hills. There were several stone quarries upon this range of hills within the respondent'? district, from •which, for many years, the surrounding country, including the appellants', had drawn stones for the repair of the highways, the stone traffic being a recognised business there ; but until 1882 there had been no .stone ta'ken from the parish of S. In 1882 a «tone quarry was opened in S. at the top of Garter'* Hill, and the stone was conveyed by the appellants for the repair of their highways dawn Cjarter's if ill in the manner customary in the stone traffic^-that 1981 WAY — Highways. 1982 is, in heavy waggons with the wheels chained, and damage was in consequence done to the road : — Held, that the evidence warranted the justices in coming to the conclusion that the traffic was extraordinary on this particular road, and that the order therefore was right. Tnnbridge Highway Board v. SevenoaJts Highway Board, 33 W. R. 306 ; 49 J. P. 340— D. Liability for— Contractor and Sub-Contractor.] — L. was a contractor with the government to erect a rifle-range, and employed D., a sub- contractor, to cart the stone. Nothing in the contract between L. and D. specified the mode of conveying the stone. D. used traction engines, and caused excessive injury to the highway : — Held, that L. was not the person liable under the Highways and Locomotives Act, 1878, s. 23, but that D. was liable, being the oidy person by whose orders the excessive weights were carried. Lapthorn v. Harvey, 49 J. P. 709— D. Surreyor, Appointment of — Evidence.] — J. was not appointed district surveyor under seal, but only by minute of the rural sanitary com- mittee signed by the chairman, but not counter- signed by the clerk of the board. L. being summoned for damage caused by extraordinary traffic, set up the defence that the appointment of J. and his certificate and the proceedings were void : — Held, that as J. had acted de facto as surveyor the objection to J.'s appointment was rightly overruled, and the order on L. was valid. Lancaster v. Harlech Highway Board, 52 J. P. 806— D. c. Liability of Coxuity Authority. Tnmpike Boads ceasing to be such and hecoming Main Boads.] — The Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vict. c. 77), by s. 13 enacts that any road which has "between the 31st of December, 1870, and the date of this act ceased to be a turnpike road, and any road which, being at the time of the passing of this act a turnpike road, may after- wards cease to be such, shall be deemed to be a main road ; and one-half of the expenses in- curred from and after the 29th of September, 1878, by the highway authority in the mainten- ance of such road, shall, as to every part thereof which is within the limits of any highway area, be paid to the highway authority of such area by the county authority of the county in which such road is aituate out of the county rate." The corporation of the borough of Bochdale was the highway authority of the Rochdale highway area. Under ss. 47^50 of the Towns Improve- ment Clauses Act,, 1847(10 & 11 Vict. c. 34), the obligation to repair all public highways within the area of the " town " was imposed upon the corporation, and the turnpike trustees were for- bidden to colleot any toll or lay out any money on any road within that area. By a local act in 1872, the boundaries of the borough were en- larged and aU the provisions of the acts relating to ttw " town " were made ajpplioable to the enlarged area iof the borough. The ©fiEeet was that further portions of turnpike roads were for the first time brought within the area of the boiough and within the operation of the Towns ImproFemetit Clauses Act, 1847 :— Held, that these further portions, being only parts of turn- pike roads, had not ceased to be "turnpike roads " and were not deemed to be " main roads," within s. 13 of the Highways and Loco- motives (Amendment) Act, 1878 ; and that the county authority were not liable to pay half the expenses of their maintenance. Lancaster JJ. V. Rochdale (_Mayor^, 8 App. Cas. 494 ; 53 L. J., M. C. 5 ; 49 L. T. 368 ; 32 W. R. 65 ; 48 J. P, 20 — H. L. (E.). The Highways and Locomotives (Amendment) Act, 1878, s. 13, provides for the maintenance of roads which have, since the 31st of December, 1870, ceased to be turnpike roads. A provision in turnpike acts coming into operation before the 31st of December, 1870, that turnpike trustees shall not spend money or levy toll upon certain portions of turnpike roads, does not prevent such portions of the roads from being still turnpike roads on the 31st of Deeember, 1870, within the meaning of s. 13 of the Highways and Locomo- tives (Amendment) Act, 1878. An agreement under the Local Government Act, 1858 (21 & 22 Vict. c. 98), s. 41, made before the 31st of December, 1870, between turnpike trustees and a corporation, under which the turnpikes upon certain portions of turnpike roads were removed, and the repair of such portions was undertaken by the corporation, does not operate to make such portions cease to be part of a turnpike road, and therefore these portions also come under the operation of the Highways and Locomotives (Amendment) Act, 1878, s. 13. West Biding JJ. v. Beg., 8 App. Cas. 781 ; 53 L. J., M. 0. 41 ; 49 L. T. 786 ; 32 W. R. 253 ; 48 J. P. 229— H. L. (E.). In 1855 a portion of a turnpike road was in- cluded in an improvement district under a local act incorporating the Towns Improvement Clauses Act, 1847 (10 & 11 Vict. c. 34). There- upon, by virtue of ss. 47-51 of the latter act, the maintenance of this portion of the road beeame vested in the improvement commissioners, and the turnpike trustees ceased to have power to collect tolls or lay out money upon it. In 1.877 the turnpike trust expired. The commissioners were the " highway authority " for the district, and the district was a " highway area " within the meaning of the Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vict. c. 77), s. 13 : — Held, that notwithstanding the operation of ss. 47-51 of the Towns Improvement Clauses Act, 1847, the road only " ceased to be a turn- pike road '' and became a " main road " within the meaning of s. 18 of the Highways and Loco- motives (Amendment) Act, 1878, upon the ex- piration of the tui-upike trust ; and that since that event happened after 1870, the county authority was liable to pay to the commissioners one-half of the expenses incurred by them in the maintenance of the portion of the road within their district, as provided by s. 13. Lancaster JJ. V. Mewtoin Improvement Commissioners, 11 App. Cas. 416 ; 56 L. J., M. C. 17; 55 L. T. 615,; 35 W. R. 185 ; 51 J. P. 6.8— H. L. (E.) Tramways — A|pr>eesLent with Local Autho- rity.] — By a local tramways act it was provid,ed that in ease steam power should be used on the tramway, the tramway company should repair the whole extent of that part of amain road .over which their lines passed, but that the company might make such contract^ .and agreements for the repair of the road with the local authwity sf 1983 WAY — Highways. 1984 the borough as might be approved by the Board of Trade. It was also provided that no contract or agreement to be entered into under the act should operate to lessen the liability of the com - pany under s. 28 of the Tramways Acts, 1870. The road authority of the borough entered into a contract with the company, by which the ex- penses of maintenance and repair of the road were divided between them. In an action by the borough road authority against the county authority for contribution under s. 13 of the Hiprhways and Locomotives Act, 1878 : — Held, that the county authority were liable to pay out of the county rate one-half of the expenses in- curred by the borough authority under the con- tract. Over-Darwen (^Mayor') v. Lancashire J J., 58 L. T. 51 ; 36 W. E. 140— D. "Maintenance" of Road.] — Converting a macadamized road into a paved road does not come within the term " maintenance " of the road as used in s. 13 of the Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vict. c. 77) ; and therefore a highway authority cannot recover half the expenses thereby incurred from the county authority under that section. LeeTi, Im- provement Commissioners v. Staffordshire JJ., 20 Q. B. D. 794 ; 57 L. J., M. C. 102 ; 36 W. K. 654 ; 52 J. P. 403— C. A. " County Authority "—Highway in Borough.] — By the Highways and Locomotive (Amend- ment) Act, 1878, s. 13, half the cost of mainten- ance of a road that has ceased to be a turnpike road is to be paid " by the county authority of the county in which such road is situate " ; and by s. 38 the word " county " in that act is to have the same meaning as it has in the Highway Act, 1862 (25 & 26 Vict. c. 61), s. 2, which provides that, for the purposes of that act, " all liberties and franchises except boroughs shall be considered as forming part of that county by which they are suiTounded." The highway authority of the borough of Over Darwen in Lancashire claimed contribution in respect of the maintenance of part of a road in the borough that had ceased to be a turnpike road from the county authority of the county of Lan- caster: — Held, that the word "county "ins. 13 of the act of 1878 is a geographical term ; and that the county authority of Lancaster, by which county the road in question is surrounded, is liable to contribute as •' the county authority of the county in which such road is situate." Over Darwen QMayor') v. Lancashire JJ., 15 Q. B. D. 20 ; 54 L. .1., M. C. 51 ; 51 L. T. 739— C. A. Affirming 48 J. P. 437— D. d. Iiiability in other Cases. Alteration of Highway District— Sural Sani- tary District.] — The provisions in 25 & 26 Vict. c. 61, ^i. 39, for altering a highway district by subtracting from it any parish by order of the county authority are not repealed by 41 & 42 Vict. c. 77, s. 3, providing for the formation of highway districts coincident in area with rural sanitary districts, and, by s. 4, for the exercise by the rural sanitary authority of the powers of a highway board within their district, and for the dissolution of the existing highway board. There- fore, although by an order made under 41 & 42 ■Vict. c. 77, the area of a highway district may have become coincident with the area of si, rural sanitary district, and the rural sanitary authority have been duly authorised to exercise the powers of a highway board, they cannot en- force contribution to the expenses of the board from a parish which has been duly subtracted from the district by an order under 25 & 26 Vict, c. 61, s. 39. Sheppy Union v. Elmley Overseers. 17 Q. B. D. 364 ; 55 L. J., M. C. 176 ; 35 W. E. 15 ; 50 J. P. 343— D; Tramway Company.] — See Tramways. e. Summary Proceedings for Non-repair. Admission by Waywarden, how far Binding- on Highway Board.] — Where proceedings are taken before justices for the non-repair of a highway in a parish f oriping part of a highway district under 25 & 26 Vict. c. 61, a bona fide admission by the waywarden of the parish that the road is a highway which the parish is bound to repair, is binding on the highway board, and it is not competent for them after such an admission to deny these facts so as to oust the jurisdiction of the justices. Loughborough High- way Board v. Curzon, 17 Q. B. D. 344 ; 55 L. J., M. C. 122 ; 55 L. T. 50 ; 34 W. E. 621 ; 50 J. P. 788— C. A. Highway Authority in Default — Jurisdiction to order Repair.] — Complaint having been made under s. 10 of the Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vict. c. 77), to a county authority that the highway authoriiry of a highway area within their jurisdiction had made default in repairing certain highways within their jurisdiction, the county authority were, after due inquiry and report by their sur- veyor, of opinion that it was bonS, fide denied by the highway authority that the ways were high- ways, and thereupon held that they had no jurisdiction to make an order : — Held, that by the terms of the above section it was the duty of the j ustices to make an order, and that a manda- mus must issue ordering them so to do. Lleg. V. Parrer (1 L. E., Q. B. 558) discussed. Heg. v. Cheshire JJ., 50 L. T. 483 ; 48 J. P. 262— D. Appeal to Quarter Sessions from Order.]- Sfs Illingworth v. JBulmer East Sighioay Board, ante, col. 1073. Appeal to Court of Appeal — Special Case stated by Quarter Sessions.] — See Illingworth V. Sulmer Mast Highway Board, ante, col. 26. f. Indictment for IToii-repair. Urban Sanitary Authority.] — Keither s. 144 of the Public Health Act nor any other statute renders an urban sanitary authority liable to a common law indictment for neglecting duties conferred on them, either as surveyors of high- ways or as inhabitants in vestry assembled. If, however, this liability is to be established against such an authority in the latter capacity, it must be upon an indictment preferred in accordance with 5 & 6 Will. 4, c. 50, and after thepreliminary steps thereby required have been taken.- Beg. v. Poole iMayor-), 19 Q. B. D. 602, 683-56 L. J., 1985 WAY — Turnpike Roads — :Bridges. 1986 M. C. 131 ; 57 L. T. 485 ; 36 W. R. 239 ; 52 J. P. 8i ; 16 Cox, C. C. 323— D. An indictment for non-repair of a highway will lie against an urban sanitary authority under s. 10 of the Highways and Locomotives Act, 1878. Jieg. v. Wakefield (Mayor), 20 Q. B. D. 810 ; 57 L. J., M. C. 52 ; 36 W. E. 911 ; 52 J. P. 422— D. Evidence — Wall supporting Highway out of Eepair.] — Where a highway is supported by a wall, and sach wall becomes dangerous by reason of non-repair, the inhabitants of the place in which such highway is situate, if liable to repair the highway, can be convicted upon an indict- ment for non-repair, it being a question for the jury whether the wall forms part of the highway or not. Evidence of repairs to a highway by the owners of the adjoining lands is inadmissible upon an indictment against the inhabitants of the place in which such highway is situate, unless liability on the part of such owners to repair the highway in question, ratione tenures, has been specially pleaded. Evidence of a pre- vious conviction of the inhabitants of a parti- cular district in a parish for the non-repair of one of the highways in such district is admissible to prove that the district is liable by immemorial custom to repair all the highways within its limits, for the repair of which the inhabitants of the whole common law parish would otherwise be primS, facie liable. Meg. v. Lordsmere In- Iiaiitants, 54 L. T. 766 ; 51 J. P. 86 ; 16 Cox, C. C. 65— C. C. K. Acquittal — Motion for new Trial by Prose- cution. ] — Where a verdict of not guilty has been returned upon an indictment for non-repair, a new trial will not be granted ; but under very special circumstances the court may order all proceedings upon the judgment to be suspended, so as to give an opportunity for the question to be again raised upon a fresh indictment. Hex V. Wandsworth (1 B. & Aid. 63) approved. Meg. V. Southampton County, 19 Q. B. D. 590 ; 56 L. J., M. C. 112 ; 57 L. T. 261 ; 52 J. P. 52 ; 16 Cox, C. C. 271— D. II. TUENPIKE BOADS. Bepair — When becoming Uain Boads. ] — See supra, I. 6, c. III. BEIDGES. Liability to Bepair — Bridge not Built in exist- ing Highways — Acquiescence by County.] — Upon the trial of an indictment against the in- habitants of a county for the non-repair of a bridge built by private owners, but not built in an existing highway, the true effect of the evidence as to the dedication to and the adoption of the bridge by the county is always a question for the jury. The fact that such a bridge is of public utility and is used by the public is not necessarily conclusive against the county on the question of liability, user and utility being only elements for consideration in determining that question ; but there need not, in addition to evidence of public user and public utility, be proof of an overt act amounting to a formal adoption by a body capable of representing and binding the county. Meg. v. Southampton County (17 Q. B. D. 424), in part dissented from. Meg. V. Southampton County, 19 Q. B. D. 590 ; 56 L. J., M. C. 112 ; 57 L. T. 261 ; 52 J. P. 52 ; 16 Cox, C. C. 271— D. The owners of land on one side of a river made a road across such land, and built a bridge connecting such road with an existing highway on the other side of the river. They then dedi- cated both bridge and road simultaneously to the public, who afterwards used the same : — Held, that, the bridge not having been erected in an existing highway, the county was not liable for its repair, inasmuch as there was no evidence of acquiescence by the county in the building and dedication of the bridge. The effect of the 21st section of the Highway Act, 1835, is, in the case of county bridges built subsequently to that act, to throw the liability in respect of sur- face repairs to the roadway of the bridge and approaches upon the highway authority. Where a county of a town has been created by charter and declared to be a separate county, the county in which it was originally situated is not liable for the repair of bridges within its boundaries. Meg. V. Southampton County, 17 Q. B. D. 424 ; 55 L. J., M. C. 158 ; 55 L. T. 322 ; 35 W. K, 10 ; 50 J. P. 773 ; 16 Cox, C. C. 117— D. liability of Eailway Company to Bepair.] — See ante, col. 1545. Bestraining Building of ITew Bridge.] — M. being entitled to lands on both sides of a river, sold and conveyed to L. a piece of land the dimensions of which were minutely given in the conveyance, and which was therein stated to contain 7752 square yards, and to be bounded on the north by the river, and to be delineated on the plan drawn on the deed, and thereon coloured pink. The dimensions and colouring extended only up to the southern edge of the river, and if half the bed had been included the area would have been 10,031 square yards instead of 7752. The deed contained various reservations for the benefit of M., but contained nothing express to show whether the half of the bed was intended to pass or not. M. was at the time owner of a private bridge close by, from which he received tolls. Thirty years afterwards a bridge was pro- jected to cross the river fiom L.'s land. The plaintiffs, who had succeeded to all M.'s property in the neighbourhood, brought their action to restrain the making the new bridge. If the grant to L. passed half the bed, no part of the new bridge would be over land of the plain- tiffs : — Held, that the presumption that the grant included half the bed was not rebutted, and that an injunction could not be granted on the ground that the erection of the bridge would be a tres- pass : — Held, also, that a stipulation in the grant that nothing therein contained should prejudice or affect M.'s right to take tolls over his bridge did not preclude L. taking away custom from that bridge by the erection of a new bridge. MicJdetAwait v. Jfewlay Bridge Company, 33 Ch. D. 133 ; 55 L. T. 336 ; 51 J. P. 132— C. A. The conveyance reserved to M., his heirs, &c., the right of entering upon the land or any part thereof for the purpose of repairing M.'s bridge : — Held, that this did not preclude L. from erecting any structures upon the land, provided he left reasonable access for the purpose of repairing the bridge, li. 3 S 1987 WEIGHTS ANP MEASUEES— WHARFINGER. 1988 WEIGHTS AND MEASURES. Sale of Bread — Delivery ty Cart without Beam and Scales.] — The appellant, a baker, having received through his traveller an order from a customer for a quartern loaf, the manager of the baker's shop selected, v?eighed, and appropriated to the customer a loaf, which was then carried out in the cart and delivered to the ■customer, on credit, by a servant of the baker, without being provided with any beam and scales with proper weights : — Held, that the appellant was rightly convicted under 6 & 7 Will. 4, c. 37, s. 7, which enacts that every baker beyond certain metropolitan limits who shall " carry out bread for sale in and from any cart " shall be provided with a correct beam and scales with proper weights, in order that all bread sold by him may be weighed in the presence of the purchaser ; and in case any such baker shall " carry out or deliver any bread " without being provided with such beam and scales with proper weights, he shall be liable to a penaltv. Ridgway v. Ward, li Q. B. D. 110 ; 54 L. J.," M. 0. 20 ; 51 L. T. 704 ; 33 W. K. 166 ; 49 J. P. 150 ; 15 Cox, 0. C. 603— D. Sect. 7 of 6 & 7 Will. 4, c. 37, provides that every baker or seller of bread, and every servant employed by such baker or seller of bread, who shall convey or carry out bread for sale in and from any cart, shall be provided with a beam and scales with proper weights, in order that all bread sold by any such baker or seller of bread, or his servant, may be weighed in the presence of the purchaser thereof : and in case any " such baker or seller of bread " or his servant shall carry out or deliver any bread without being provided with such beam and scales, every such baker or seller of bread shall be Uable to a penalty. A customer bought three loaves in a baker's shop. The baker weighed the loaves in her presence, and subsequently, at her request a,nd to oblige her, his servant carried them out in a cart and delivered them at her house, without being provided with any beam and scales : — Held, that the baker had not carried out or delivered the loaves as " such baker or seller of bread," and therefore could not be con- victed of an ofEence under s. 7. Daniel v. WMtjieU, 15 Q. B. D. 408 ; 54 L. J., M. C. 134 ; 53 L. T. 471 ; 33 W. R. 905 ; 49 J. P. 694— D. Sale of Intoxicating Liquor in marked Mea- sure.] — By the Licensing Act, 1872, s. 8, all in- toxicating liquor which is sold by retail, and not in cask or bottle, and is not sold in a quantity less than half a pint, is to be sold in measures marked according to the imperial standards. A publican, being asked for a pint of beer by a customer, went into an inner room, where he drew the beer into a marked measure and poured it into a jug, which he then brought into the room where the customer was sitting and handed to him. The customer could not see the beer •drawn, and never saw it while in the measure. The publican having been convicted of an offence under s. 8 : — Held, that the sale was not complete until the beer was handed to the customer, that the beer was not sold in a marked measure as required by the statute, and that the conviction was right. Addy v. Blahe, 19 Q. B. D. 478 ; 56 L. T. 711 ; 35 W. E. 719 ; 51 J. P. 599 ; 16 Cox, 0. C. 259— D. WHARFINGER. Jetty in Tidal Eiver— Vessel Grounding- Implied Eepresentation.]- The defendants, who were wharfingers, agreed with the plaintiff for a consideration to allow his vessel to discharge and load her cargo at their wharf, which abutted upon the river Thames. It was necessary in order that the vessel might be unloaded that she should be moored alongside a jetty of the defendants which ran into the river, and that she should take the ground with her cargo at the ebb of the tide. The vessel at the ebb of the tide sustained injury from the uneven nature of the ground. The bed of the river at the point where she took ground was vested in the Conser- vators, and the defendants had no control over it, but it was admitted that they had taken no steps to ascertain whether it was suitable for the vessel to ground upon : — Held, that there was an implied undertaking by the defendants that they had taken reasonable care to ascertain that the bottom of the river at the jetty was not in a condition to cause danger to the vessel, and that they were liable for the damage sustained by her. Tlie Moorooclt, 14 P. D. 64 ; 60 L. T. 654 ; 37 W. E. 439—0. A. Affirming 58 L. J., P. 15— Butt, J. Warrant — Negligent Eepresentation — Estop- pel.]— Goods were in 1875 stored by brokers with wharfingers, who issued a warrant for the same. In 1885 the servants of the defendant, who had taken over the wharf and business, delivered the goods by mistake to certain per- sons instead of goods to which they were en- titled, and the defendant was not made aware of the mistake. The warrant had been negotiated, and was in January, 1886, in the possession of B. and E. In that month no rent having been paid for the goods since 1880, the defendant wrote two letters to the plaintiii, who had pre- viously taken over the business of the brokers and carried it on under their name, informing him, as the supposed holder of the warrant, and as the person presumedly interested in the goods, that the goods were in hand, that rent was due, and that, unless it was paid, the goods would be sold to cover the amount due. The plaintiffl made no reply, but afterwards, and in conse- quence of receiving these letters, he bought the warrant from B. and E. and applied to the de- fendant for the goods, when the defendant first discovered that they were no longer in his pos- session. In an action to recover damages for a wrongful conversion of the goods : — Held, that the defendant was liable, being estopped from denying that he had the goods specified in the warrant, because he had by his negligent mis- representation led the plaintiff to believe that the goods were in his possession, and such mis- representation was the cause of the plaintiff's loss, the plaintiff having purchased the warrant in consequence of the same. Seton v. Lafone, 19 Q. B. D. 68 ; 56 L. J., Q. B. 415 ; 57 L. T. 547 ; 35 W. E. 749— C. A. WIPE. See HUSBAND AND WIFE. 1989 WILD BIEDS— WILL. 1990 WILD BIRDS. Freaerration — Authority of Owner or Occupier of Land.] — By the 3rd section of the Wild Birds Preservation Act, 1880, it is provided that any person who between the 1st day of March and the 1st day of August in any year after the passing of the act shall knowingly and wilfully shoot or attempt to shoot any wild bird, or shall use any Mme, trap, snare, net, or other instru- ment for the purpose of taking any wild bird, shall forfeit, &c., but the section is not to apply to the owner or occupier of any land, or to any person authorised by the owner or occupier of any land, kUling or taking any wild bird on such land. R. having, with the authority of the occupier of certain laud, shot wild birds thereon, which were taken on other lands without the authority of the owners or occupiers thereof, was charged with an offence against the section : — Held, that E. did not come within the exemption contained iu the section, and was rightly con- victed. Beg. or Warr v. GUham, 52 L. T. 326 ; 49 J. P. 357— D. WILL. I. Testamentaet Capacity, 1991. II. Testamentaet Instrttmbnts, what ENTITLED TO PEOBATE, ETC. 1. Foreign Wills, 1992. 2. Disposing of Freeholds, 1993. 3. By Married Women, 1993. 4. Where there are Several Instru- ments, 1994. 5. Incorporation of Unattested Papers, 1997. 6. Conditional and Contingent, 1997. 7. Alterations, Additions, and Omis- sions, 1998. 8. Losf Wills, 1998. III. DOITATIO MOETIS CatisA, 1999. IV. Execution and Attestation. 1. Generally, 2000. 2. Attestation ly Parties Interested, 2002. V. Ebvocation, 2004. VI. Eepublication, 2006. VII. Probate and Letters op Adminis- tration. 1. Jurisdiction, 2006. 2. To lohom granted. a. Probate, 20O7. i. lietters of Administration, 2008. 3. Administration Bond, 2011. 4. Mevocation of Grant, 2012. 5. Practice relating to, 2013. 6. Probate and Legacy Duty — See Kevende. Till. Constettction. 1. General, Principles, 2016. 2. Inaccuracies — Parol Emdence to Explain, 2017. 3. Devisees and Legatees. a. To what Persons. i. Children. «. Illegitimate Children, 2021. $. In Ordinary Cases, 2025, ii. Survivors, 2027. iii. Executors, 2029. iv. Next of Kin, 2030. V. Eepresentatives, 2031. vi. Wife, 2032. vii. Cousins, 2033. viii. Heirs, 2033. ix. In other Cases, 2034. h. Gift to a Class, 2037. 0. Vested and Contingent Interests, 2039. d. Death without Issue, 2047. e. Death coupled with Contingency, 2048. /. Acceleration of Interests, 2052. 4. Wliat Interest Passes. ti. Absolute. i. Lands, 2052. ii. In other Cases, 2055. 1. Li£e Estate or Interest, 2058. c. Estate Tail, 2062. 5. Bequests and Devises. a. Particular Words, 2065. i. Conditions. i. Repugnancy, 2073. ii. Forfeiture of Estate and Interest. o. Non-Eesidence, 2074. J3. Name and Arms Clause, 2076. y. Bankruptcy, &c., 2077. iii. Other Conditions, 2078. c. Validity. i. Eemoteness, 2080. ii. Uncertainty, 2082. iii. Perpetuities, 2083. iv. Thellussou Act, 2084. V. To Charities — iSeeCHAElTY. d. Specific Bequests and Devises, 2084. e. Ademption and Satisfaction. i. Ademption, 2087. ii. Satisfaction, 2090. /. Trusts. i. Secret Trusts, 2091. ii. Eesulting Trusts, 2092. iii. Precatory Trusts, 2093. g. Annuity, 2094. h. Powers of Appointment. i. Instruments by which Exer- cised, 2095. ii. Fraud on Power, 2099. iii. To what Persons, 2101. iv. Estate by Implication in Default, 2102. v. Other Matters relating to, 2103. i. Election, 2106. /. Mortgages and Incumbrances, 2111. h. Charge and Payment of. i. Charge on Leaseholds and Real Estate, 2113. ii. Exoneration of Personal Estate, 2115. iii. Contribution, 2118. 3 S 2 1991 WILL — Testamentary Capacity. 1992 iv. Marshalling, 2120. V. Accumulations, 2121. vi. Apportionment of Gain and Loss, 2124. vii. Other Points as to Pay- ment, 2126. Interest on Legacies — See ante, col. 791. ',. Conversion — See Conveksion. I. TESTAMENTAEY CAPACITY. Testator subject to Belusions.] — In a case in which the question of testamentary incapacity arose, the court followed the decision of Banks V. GoodfelloiD (5 L. E., Q. B. 549). Murfett t. Smith, 12 P. D. 116 ; 57 L. T. 498 ; 51 J. P. 374 — D. Undue Influence — Coercion — Burden of Proof.] — To establish undue influence snfScient to in- validate a will, it must be shown that the will of the testator was coerced into doing that which he did not desire to do, and the mere fact that the testator in making his will was influenced by immoral considerations does not amount to such undue influence so long as the dispositions of the will express the wishes of the testator. Wingrove v. Wingrove, 11 P. D. 81 ; 55 L. J., P. 7 ; 34 W. E. 260 ; 50 J. P. 56— Haunen, P. Married Woman — Future Separate Estate — Assent of Husband.] — The will of a married woman who had no personal estate belonging to her for her separate use at the date of the will, made without the assent of her husband, is effectual to dispose of personal estate to her separate use which she afterwards acquires and is entitled to at her death. Charlemont (^EarV) V. Spencer, 11 L. E., Ir. 490— C. A. Realty — Eenunoiation by Husband.] — Mere renunciation by an intended husband of his marital rights in his wife's real property is not sufficient to clothe her with a testamentary power, or to constitute a valid declaration of trust of the fee. And upon the death of the wife without issue during her husband's lifetime, her heir-at-law, and not her devisee, will be entitled to the land of which she is seised in fee simple. Mippon v. DawAmg (Ambl, 565) com- mented on. Bye v. Dye, 13 Q. B. D. 147 ; 53 L. J., Q. B. 442 ; 51 L. T. 145 ; 33 W. E. 2— 0. A. Gift towards the erection of a Churcb, Invalid.] — Under the statute 43 Geo. 3, c. 108, which contained a power to all persons having an interest in any lands or in any goods or chattels, to give by deed enrolled, or will exe- cuted, three months before death, lands not exceeding five acres, or goods and chattels not exceeding in value 5002. , for or towards the erecting of any church, with a proviso that the act should not extend to any persons being within age, nor women covert without their husbands to make any such gift : — Held, that the proviso was not affected by the Married Women's Property Act, 1882, which by s. 1, sub-s. 1, gave power to married women to dis- pose by will of any real or personal property as her separate property in the same manner as if she were a feme sole. Consequently a gift by a married woman, by will executed three months before death, to the vicar and churchwardens of a church of a sum of 3002. to be applied by them in the erection of a new church, and to be paid out of personal estate which was legally applicable for the purpose, was held to be in- valid. SmitVs Estate, In re, Clements v. Ward, 35 Oh. D. 589 ; 56 L. J., Ch. 726 ; 56 L. T. 850 ; 35 W. E. 514 ; 51 J. P. 692— Stirling, J. Eepublioation when Discovert — Subse- quently acq.uired Property.] — Testatrix, a. married woman, having under her marriage settlement a power of appointment over some 15,000Z. worth of securities, and being entitled to jewels and furniture for her separate use, by her will in 1883, in exercise of this power and " of all other powers enabling her in this be- half," appointed, gave, and bequeathed " all the property of whatever nature comprised in the said settlement, and over which I have any power of appointment or disposition by wiU," to trustees upon certain trusts. In August, 1885, the husband of the testatrix died, and she there- upon became entitled to certain real estate, and had 7,500Z. worth of personal estate ; in Decem- ber, 1885, she made a codicil by which she devised certain real estate therein referred to as having come to her from her late husband, but which did not otherwise refer to or confirm her will. Testatrix died in 1886 :— Held, that the will as originally executed was only intended to deal with the property comprised in the settle- ment, that the codicil merely confirmed the will as it originally stood, and in no way enlarged its scope so as to make it include 7,500Z. subsequently acquired from her husband, and that as to this- amount there was an intestacy. Taylor, In re, Whitby V. Highton, 57 L. J., Ch. 430 ; 58 L. T. 842 ; 36 W. K. 683— Chitty, J. Section 1, sub-s. 1, of the Married Women's Pro- perty Act, j 882, gives a married woman power to dispose by will only of property of which she is seised or jjossessed while she is under cover- ture. Consequently, notwithstanding s. 24 of the Wills Act, her will made during coverture is not, unless it is re-executed after she has become discovert, effectual to dispose of property which she acquires after the coverture has come to an end. Price, In re, Stafford v. Stafford, or Price V. Stafford, 28 Ch. D. 709 ; 54 L. J., Ch. 509 ; 52 L. T. 430 ; 33 W. E. 20— Pearson, J. Banking accounts were kept in the joint names of husband and wife, and investments in railway stock were made in their joint names. The wife survived her husband five days, having executed a will during coverture : — Held, that the balances of the joint accounts and the joint investments survived to the wife, but did not pass under her will. Toung, In re, Trye v. Sullivan, 28 Ch. D. 705 ; 54 L. J., Ch. 1065 ; 52 L. T. 754 ; 33 W. E. 729— Pearson, J. II. TESTAMENTARY INSTRUMEITTS, WHAT ENTITIED TO PROBATE, ETC. 1. FOEEIGN WILLS. Execution by Alien Abroad.]— A will made by an alien, who was domiciled abroad at the time of making her will and of her death, and executed according to the forms required by English law, but not in manner required by the law of the 1993 WILL — Testamentary Instruments, dc. 1994 country of her domicil, ia not entitled to pro- bate, though her domicil of origin was English. Bloxam v. mvre, 9 P. D. 130 ; 53 L. J., P. 26 ; 50 L. T. 766 ; 32 W. E. 673— C. A. Affirming 47 J. P. 377— Hannen, P. Scotch "Will— Invalid according to English law — Leaseholds in England.] — An Englishman resident in Scotland bequeathed his whole means and estate to a trustee to pay certain pecuniary legacies and all the rest of his means and estate to be divided equally among certain of his god- children. The execution of the will was valid according to the law of Scotland, but invalid according to English law. The testator possessed leasehold property in England : — Held, that the English leaseholds passed under the will by virtue of the statute 24 & 25 Vict. c. 114, s. 2. Watson, In re, Carlton v. Carlton, 35 W. R. 711 —North. J. 2. DISPOSING OP FREEHOLDS. Eq^nitable Conversion.] — Where freehold pro- perty is, by the doctrine of equitable conversion, to be considered as personalty, it is liable to probate and legacy duty, and a will disposing of it is entitled to probate. Gumi, In Goods of, 3 P. D. 242 ; 53 L. J., P. 107 ; 33 W. R. 169 ; 49 -J. P. 72— Hannen, P. 3. BY MARRIED WOMEN. Testamentary Capacity.]— &c supra. General or Limited Grant.] — The limitation inserted before the Married Women's Property A.ct, 1882, in the probate of the will of a married woman, ought no longer to be required, and the court will henceforth make a general grant. Price, In Goods of, 12 P. D. 137 ; 56 L. J., P. 72 ; 57 L. T. 497 ; 35 W. R. 596 ; 51 J. P. 615— Butt, J. The court refused to limit a grant of probate of a married woman's will, even where such will was made, and the person who made it had died before the Married Women's Property Act, 1882, and when the wUl and codicils were executed by virtue of a power of appointment. Homfray, In Goods of, 57 L. T. 498, n. ; 51 J. P. 615— JButt, J. Since the Married Women's Property Act, 1882, probate of the will of a married woman appoint- ing executors, though the will is made in exercise •of a power, and contains no disposition of property to which she was entitled outside the power, will be granted in the general form, and not, as here- tofore, in a limited form. lei-crs. In Goods of, Z3 L. R., Ir. 1— Prob. Will dealing with Bealty only — Personalty.] — The will of a married woman dealing only with xealty, but appointing executors, is entitled to probate where a portion of the estate consists «f personalty vested in her by virtue of the- Married Women's Property Act, 1882. Ciiblon or OiibloM, In Goods of, 11 P. D. 169 ; 55 L. J., P. 77 ; 57 L. T. 87 ; 35 W. R. 200 ; 50 J. P. 744— Butt, J. Assent of Husband — Power to Revoke.] — A married woman made a will with the assent of her husband, and after her death he assented to the will : — Held, that he could not afterwards revoke his assent, and that the will was entitled to probate. The form of the judgment and pro- bate determined. Chappell v. Charlton, 56 L. J., P. 73 ; 57 L. T. 496 ; 51 J. P. 215— Butt, J. 4. WHERE THERE ARE SEVERAL INSTRUMENTS. Estate in England and Belgium — Two Wills — One in Belgian, other in English Form.] — A testator having an English domicil of origin died in Belgium possessed of property in Eng- land and in Belgium. He left two wills, one in the English form disposing of his property in this country, the other in the Belgian form disposing of his estate situate in Belgium. The court, on the renunciation of the Belgian executor and on an affidavit that according to the law of Belgium the Belgian will only applied to the property in that country, granted probate of both wills, as together constituting the last will of the deceased, to the English executor. Bolton, In Goods of, 12 P. D. 202 ; 57 L. J., P. 12 ; 36 W. R. 287— Hannen, P. English and Spanish Wills — Probate of Eng- lish Will only.] — A testator made a will in England, which disposed only of English pro- perty. Subsequently he made abroad another will, which disposed of property abroad and cancelled all previous dispositions. The court, with the consent of all the parties interested, ordered probate of the English will only, and allowed the foreign will to be delivered out of the registry for probate abroad. Smart, In Goods of, 9 P. D. 64 ; 53 L. J., P. 57; 32 W. E. 724 ; 48 J. P. 456— Hannen, P. Two Documents separately Executed.] — A writing, comprising two parts, on different pages, separately signed and attested, but exe- cuted on the same day and occasion, the first part appointing executors, and commencing, " I further will," and disposing of further pro- perty, admitted to probate as one entire will. Bonner, In Goods of, 21 L. R., Ir. 339— Prob. Codicil the only executed Paper forthcoming.] — At the death of a testatrix the sole testamentary papers forthcoming were a duly executed codicil and two drafts of wills, as to the execution or revocation of which there was no evidence : — Held, that though the codicil by its language was dependent on the will to which it belonged, and could not be construed without it, it ought to be admitted to probate, not having been re- voked in any of the methods prescribed by the Wills Act. Black v. Jolling (1 L. E., P. 685) followed. Gardiner v. Courthope, 12 P. D. 14 ; 56 L. J., P. 55 ; 57 L. T. 280 ; 35 W. R. 352 ; 50 J. P. 791— Butt, J. When First revoked by Second Will.] — A testatrix made a will on the 9th February, 1884, which she declared to be her last will, revoking all previous wills, and appointing a residuary legatee and an executor. On 19th February, 1884, she made another will, which commenced, " I declare this to be my last will,' 1995 WILL — Testamentary Instruments, <&c. 1996 and bequeathing part of. her property in legacies, and appointing another executor :— Held, that the latter will did not revoke the former, and both were admitted to probate. O'Connor, In Goods of, 13 L. E., Ir. 406— Prob. A married woman, in exercise of a power to appoint real estate (subject to a trust for sale, but not sold), by will, made in 1870, appointed a life interest therein to her husband, and after his death as she should further appoint. By a subsequent will, made in 1880, also purporting to be made in exercise of the same power, she ap- pointed three rent-charges — one to her husband, and the others to two of her children,; and, sub- ject to such rent-charges, she appointed the lands to her sons and daughters successively in tail with an ultimate remainder to her sisters (who were not objects of the power) in fee, thus purporting to deal with the entire estate ; and she appointed her husband residuary legatee and devisee : — Held, that the first will was revoked by the second, and that the latter will should alone be admitted to probate. Maofarlane, In Goods of, 13 L. K., Ir. 264— Prob. ^ Evidence of Contents.]— A testator made a will in 1864, appointing his wife sole executrix, and duly executed another document in 1877. There was no evidence of the contents of the second document except that after its execution the testator said, "I have made a will altering my affairs, and I have taken care of Ellen, and there will be something for Roby," and except a memorandum at the foot of the will as follows : " This will is now useless, a new will having been made in October, 1877, upon my wife telling me she was sorry she had ever seen me," &c. : — Held, that in the absence of proof of an altera- tion as to the executrix or of a revocatory clause of disposition wholly inconsistent with the first wUl, that will was not revoked, and was there- fore entitled to probate. Quaere, whether the memorandum was admissible in evidence to show an intention to revoke the first will. Sellier v. HelUer, 9 P. D. 237 ; 53 L. J., P. 105; 38 W. K. 324 ; 49 J. P. 8— Butt, J. Will by Wife during Coverture.] — A mar- ried woman , having in a settlement a special power of appointment by will over real estate, executed a will during coverture in 1866 appointing the same. After the death of her husband she made three other wiUs. In the first and second she said : " I revoke all other wills," and in the third : " I . . . hereby revoke all wills, codicils, and other testamentary dispositions heretofore made by me, and declare this to be my last will and testament," and then disposed of all her estate, " including as well real estate as personal estate over which I have or shall have a general power of appointment," but she did not in any way exercise or affect to exercise the power in the settlement, nor did she refer to it, or to the property the subject of the power : — Held, that the testamentary appointment of 1866 was revoked. Kingdon, In re, WilMns v. Fryer, 32 Ch. D. 604 ; 55 L. J., Oh. 598 ; 54 L. T. 753 ; 34 W. E. 634— Kay, J. Will by Codicil — Appointment in Will— In- valid Appointment by Codicil.] — Testator by will,, who said his estate would realise at least 10,0002., wished 4,O0OZ. to be invested on trust for his sister, A. P., for her life. At her death the principal might be divided between her husband, if surviving, and children as she might by will determine. After giving other legacies, the testator bequeathed the remainder to the children of J. F. A sum of 4,0002. was invested' in Consols and transferred into court. A. P. tij will gave all the residue of her property, includ- ing the sum of 4,000Z. left to her by the testator, and over which she had a disposing power, to her husband and children in equal terms. One son after the date of the wiU died, leaving two children, and by a codicil made afterwards, A. P. bequeathed the share which would have gone to him in trust for his children. On petition by the husband and surviving children for sale of the trust fund and payment of the proceeds to them : —Held, that the invalid appointment by the codicil did not operate as a revocation pro tanto of the gift by the will to the class, and that the husband and surviving children were entitled to the whole of the fund. Buguid v. Fraser, 31 Ch. D. 449 ; 55 L. J., Ch. 285 ; 54 L. T. 70 ; 34 W. E. 267— Kay, J. Bevocationof Gifts "in favour of" Donee of Power.] — A testator by his wiU gave to his. sister H. a life interest in a share of his residuary estate, and a special power of appointment by will over the capital of the share. By a codicU he revoked all devises and bequests whatsoever- "in favour of" H. : — Held, that the power was revoked as well as the life interest. Brough, In re, Currey v. Brough, 38 Ch. D. 456 ; 57 L. J., Ch. 436 ; 58 L. T. 788 ; 36 W. B. 409— Kay, J. Will to be read as if Name of Legatee- omitted,] — A testatrix by her will bequeathed her watch to her granddaughter M., and her brooch to her granddaughter J. ; and, after giving certain pecuniary legacies, bequeathed to M. a legacy of 2002. A codicil made by the testatrix three years later, after reciting the legacies of the watch and brooch, continued as follows : — " Now I hereby revoke and make void the said legacies and bequests in my said will contained in favour of the said M. and J., and declare that my said will shall be read and construed in all respects as if the names of the- said M. and J. had not been inserted therein, and in all other respects I confirm my said -will " : — Held, that the legacy of 2002. was not revoked by the codicil. Perowal, In re, Boote v. Button,. 59 L. T. 21— C. A. A testatrix gave all her personal estate to her sisters Mary, Sarah, and Ann upon trust to invest and pay the income to her said sisters in equal shares during their lives, -mth benefit of survivorship, and after the death of the survivor, in case any of her nephews D. W. S. and E. 0. S. and her niece M. A. S. should be then living,, she gave her personal estate to T. E. and J. upon trust to transfer the sums invested as aforesaid, and all interest unto the said D. W. S., E. 0. S., and M. A. S. in equal shares and proportions ; and if but one of them should be then living, then the whole of such principal sums, &c., to be paid or assigned to such one, his or her executors, ad- ministrators, and assigns absolutely. But in case of the death of the testatrix's said nephews and niece, leaving either of her said sisters surviving, the testatrix gave and bequeathed all the said principal sums, &c., and all other her estate unto the survivor of her said sisters absolutely. The testatrix made u. codicU^ 1997 WILL — Testamentary Instruments, die. 1998 whereby she requested " all names of T. E., J., and of D. W. S., K. 0. S., and M. A. S., and any other of her friends except her three sisters, to be considered the same as if omitted from her will " : — Held, that the omission of these names did not strike out the gift of the capital to the surviving sister, who took absolutely. Stephenson V. Stephenson, 56 L. T. 75 — 0. A. Affirming 54 L. J., Ch. 928— Pearson, J. , A testator bequeathed his residuary estate upon trusts for the benefit of his children, and as to the sons' shares he directed that one moiety should be held absolutely, and that the other moiety should be settled. By a codicil the tes- tator revoked every devise and bequest to or in favour of his sou S. : — Held, a revocation, of the interest of the children of S. in the settled moiety. Tahor v. Prentice, or Prentice v. Taior, 52 L. T. 85 ; 32 W. E. 872— Kay, J. 5. INGOEPOBATION OF UNATTESTED- PAPEES. Eefereuce in Will to Papers.] — To incorporate a document in the probate of a will, three things are necessary — (1) that the wiU should refer to the document as then in existence ; (2) proof that the document propounded was in fact written before the will was made ; and (3) proof of the identity of such document with that referred to in the will. A testator bequeathed all property he died possessed of to his executors, to be disposed of in charity in such manner as " 1 may direct them ; and in case I may not leave directions or instructions, then they may dispose of it in such manner as they may think fit." The testator signed a paper, bearing the same date as the will, and in his own hand- writing, containing directions for the manage- ment of his property for charitable purposes, and headed " Directions to the executors of my last will, executed the 13th February, 1879, how they are to manage my affairs : " — Held, that the will did not sufficiently describe the paper of directions as then existing, and that parol evidence was not admissible to identify it as the document referred to in the will. The court, therefore, refused to incorporate the directions with the probate. Kehoe, In Goods of, 13 L. E., Ir. 13— Prob. A testatrix, the day before undergoing an operation which ended fatally, wrote two letters ; the first, which was addressed to a personal friend, gave directions as to certain articles of plate to which the testatrix had affixed the names of various donees, and the second to her executor. In this letter, which was duly attested as a codicil, she mentioned having written the first letter : — Held, that the second letter, which constituted a valid codicil, incor- porated the first letter and that the first letter incorporated the papers therein referred to. Symes v. Appelie, 57 L. T. 599 ; 51 J. P. 632— Hannen, P. 6. CONDITIONAL AND CONTINGENT. A testator made his will as follows : — " As I am abcwt to leave home for Bangor, should aily accident, &c., take me out of this world, I will to E.M'I)., of, &c., 200Z. and also furniture to the amount of 50Z. at her selection," for her sole and separate use. " The remainder of all I am possessed of, or may be entitled to possess, I leave to my daughter S. C, for her sole and separate use, &c, ; and should, in God's inscrut- able providence, anything take her and her son away from this world before I again make my will — S. C. and her son — I will everything I may be possessed of to E. M'D., of, &c., for her sole and separate use," &c. The testator went to Bangor the same day, and returned home in a week without meeting with any accident, and did not again leave Ireland, or make any other will, until his death — more than six years afterwards : — Held, that the will was not conditional or contingent on any accident to him during his projected journey to Bangor. Principles of construction in determining whether a will is conditional or absolute. Stuart, In Goods of, 21 L. E., Ir. 105— Prob. 7. ALTEEATIONS, ADDITIONS AND OMISSIONS. Alteration — Duty of Court.] — A testatrix duly executed a holograph will, which after her decease was found with the word " one " written in the place of another word. There was no evidence to show when the alteration was made. The original word was quite illegible : — Held, that it was the duty of the court to decide what the obliterated word was, i£, from the evidence, it was able to do so with " reasonable certainty," and in that event to admit the will to probate with the word so decided upon in place of the word substituted for it by the testatrix. Jejfery V. Cancer Hospital, 57 L. T. 600 ; 51 J. P. 503— Butt, J. Interlineation — Definition of] — The definition of the word " interlineation " in the Wills Act is not to be confined to something- written between the lines. Something put into one of the lines, but written on the line, is equally an " interlineation " within the meaning of the act. Bagshawe v. Canning, 52 J. P. 583 — Hannen, P> Mistake, in Copying — Will altered to corre- spond with Draft.] — A testator in the draft of his will, which was duly executed and read over to him before execution, bequeathed a legacy to the Bristol Eoyal Infirmary. In the will, which was not read over to him, the bequest by a mistake in the engrossment was to the: British Eoyal Infirmary. The Court, subject to an affidavit that there was no such institution as the British Eoyal Infirmary, granted probate of the will, with the word " Bristol " substituted, for " British." Bnshell, In Goods o/, 13 P.. D. 7 ; 57 L. J., P. 16 ; 58 L. T. 58 ; 36 W: E. 528 ; 51 J. P. 806— Butt, J. 8. LOST WILLS.. Evidence of Contents — Parol Evidence — De- claration by Testator,] — If a lost will is pro- pounded for probate upon parol evidence alone, with evidence of a residuary bequest, but no sufficient evidence as to the rest of the will : — Qusere, whether probate ought to be granted of the residuary bequest alone, unless the court is 1999 WILL — Donatio Mortis Causa — Execution and Attestation. 2000 satisfied that it has before it substantially the testamentary intentions of the testator. Qnsere, also, whether post-testamentary declarations of the testator as to the contents are admissible in evidence. Su.gden v. Lord St. Leonards (1 P. D. 154) commented on. Woodiuard v. Gotdstone, 11 App. Cas. 469 ; 56 L. J., P. 1 ; 55 L. T. 790 ; 35. W. E. 337 i 51 J. P. 307— H. L. (E.). Advertisement.] — Before applying for pro- bate of a lost will, an advertisement should be published offering a reward for production of the will. C'aUaghan, In Goods of, 13 L. E., Ir. 245 — Prob. III. DONATIO MORTIS CAUSA. Banker's Deposit Eeceipt.] — A deposit receipt in the ordinary form used by banks may be the subject of a donatio mortis causS, ; and this is so, although the receipt is expressed to be not transferable. Cassidy v. Belfast SanMng Com- , 22 L. R., Ir. 68— Ex. D. Uncorroborated Evidence of Donee.] — A gift by a dying man of a banker's deposit receipt under such circumstances as to constitute it a good donatio mortis causS. will be upheld, even though the only evidence in support of the claim be that of the donee, if the court con- siders the evidence trustworthy. Farman, In re, Farman v. Smith, 57 L. J., Ch. 637 ; 58 L. T. 12 —North, J. Deposit-Xote — Besumptiou of Possession.] — G. T. in his last illness showed a deposit-note to his daughter the plaintiff, and told her in effect that it was to belong to her in the event of his death. The plaintiff took the note, and by her father's ]|directions placed it for safe custody in a cash-box which was kept in her father's bed- room, but of which she had the key, and to which she had resort for household purposes : — Held, that this was a good donatio mortis causS.. Taylor, In re, Taylor v. Taylor, 56 L. J., Ch. 597— Stirling, J. Gift of Insurance Money.] — A., having made his will in 1880, by which he gave the income of his property to his wife B., fell ill in 1887, and, being in anticipation of death, signed the follow- ing document : — " 1887, March 1. — I give all my insurance money that is coming to me to my wife B. for her own use, as well as 200Z. in the bank. This is my wish. — A., witness, C." This document was, at A.'s request, placed with his will, and remained there till his death in April, 1887. Evidence having been admitted as to the circumstances -attending the execution of the document : — Held, that effect could not be given to the document as a donatio mortis causS,. Hughes, In re, 59 L. T. 586; 36 W. E. 821— C. A. Cheque payable to Donor or Order.] — A cheque payable to the donor or order, and, without having been indorsed by him, given by the donor during his last illness to his son, stands on the same footing as a promissory note or bill of exchange payable to the donor or order, and will pass to the son by way of donatio mortis followed. 631 ; 54 Chitty, J. Veal V. Veal (27 Beav. 303) Clement v. Cheeseman, 27 Ch. D. L. J., Ch. 158; 33 W. E. 40— IV. EXECUTION AND ATTESTATION. 1. GENEEALLT. Presumption of due Execution.] — The cases which have been decided in reference to the presumption of due execution of wills apply as well where the alleged testator's signature has been affixed by his direction as where he has himself actually written his name. Clery v. Barry, 21 L. E., Ir. 152— C. A. Holograph Codicil — Attesting Witnesses unable to recollect the Execution.] — A testator left a codicil entirely in his own handwriting, written on the third side of the sheet of fools- cap, the first side of which contained his wiU. There was an attestation clause in proper form, and the testator had signed his name at the foot of the codicil, but there being no more space on the sheet, the names of the attesting witnesses appeared at the bottom of the second page, opposite the attestation clause. The attesting witnesses acknowledged their signatures, but had no recollection of having signed the paper, nor of ever having seen it before : — Held, that the codicil was duly executed. Woodhouse v. Bal- four, 13 P. D. 2 ; 57 L. J., P. 22 ; 58 L. T. 59 ; 36 W. E. 368 ; 52 J. P. 7— Hannen, P. Eebutting by Parol Evidence.] — Where a will appeared on the face of it to have been duly executed as prescribed by the Wills Act, and the attestation clause was in full accord- ance with ss. 9 and 10 of the statute, the court, nevertheless, gave effect to the parol evidence of the attesting witnesses, varying the terms of the attestation clause they had subscribed to : — Held, that the presumption of law. Omnia prse- sumuutnr rite et solenniter esse acta, was rebutted by their evidence, and that the will had not been duly executed, and that it could not be admitted to probate. Glover v. Smith, 57 L. T. 60 ; 50 J. P. 456— Butt, J. In 1878 the testator, who was a good man of business, but not a lawyer, wrote a holograph codicil upon the same paper as a will which he had made in 1868, and wrote at the end of it an attestation clause adapting that at the end of the will to the case of a codicil. He called the nurse into the schoolroom, and asked her and the nursery governess to "sign this paper." There was evidence that he took his own pen into the room. Both witnesses signed. At the trial, which took place between four and five years afterwards, the codicil was produced bear- ing the testator's signature, and both the attest- ing witnesses were examined. The governess deposed that she had designedly abstained from looking at any of the writing on the paper, and the nurse, it appeared, had been very nervous. Neither of them could say anything as to what writing was on the paper, nor as to whether the testator's signature was there when they signed, and both said that they did not see him sign. The President pronounced for the validity of the 2001 WILL — Execution and Attestation. 2002 ■codicil : — Held, by Earl Selborne, L. C, that the reasonable conclusion was that the codicil was ■signed by the testator in the presence of the witnesses. Wright v. Sanderson, Sanderson, In re, 9 P. D. 149 ; 53 L. J., P. 49 ; 50 L. T. 769 ; .32 W. K. 560 ; 48 J. P. 180— C. A. Held, by Cotton, L.J., that on the evidence he should have come to the contrary conclusion, but that the finding of the President, who had seen and heard the witnesses, ought not to be reversed. lb. Held, by Fry, L.J., that as the codicil ex facie appeared to be properly executed, and the presumption omnia rite esse acta was strengthened by the conduct of the testator, which showed an anxious and intelligent desire to do everything regularly, that presumption was not rebutted by the evidence of the witnesses, who appeared to have been nervous and confused on the occasion ■of the attestation, and whose recollection of what took place was evidently imperfect. lb. Codicil executed on Margin of Will — Foot «r End.] — A testator duly executed a will pre- pared by a solicitor which was written on the first side of a sheet of foolscap paper. Desiring shortly before his death to make an alteration in the disposition of his property he called in the assistance of a neighbour, who wrote out a codicil on the third sheet of the foolscap, beginning, "The folio-wing alterations having been first made " and ending with an attestation clause in due form. The mark of the testator, however, .and the signatures of the attesting -witnesses, were written opposite the body of the -will on the ^margin of the first page, the person who ■prepared the codicil being under the impression that as it was an alteration in the will it ought to be attested on the margin : — Held, that the codicil was not duly executed, and probate refused. Snghes, In Goods of, 12 P. D. 107 ; 56 L. J., P. 71 ; 57 L. T. 495 ; 35 W. E. 568— Hannen, P. Mark — Foot or End.] — A testator two days before his death, being paralysed on one side and partly speechless, intimated to the two medical men in attendance on him his desire to make a will. They interpreted his wishes by signs and wrote them down on a card. He executed the document by making his mark, which however appeared in the middle of the -writing, and they then put their initials as witnesses at the back : — Held, that the card constituted a valid testa- mentary paper duly witnessed, expressing the intentions of the deceased ; but that it was not signed at the " foot or end " within the meaning of the statute, and was therefore not duly executed and not entitled to probate. Margary V. RoUnson, 12 P. D. 8 ; 56 L. J., P. 42 ; 57 L. T. 281 ; 35 W. E. 350 ; 51 J. P. 407— Hannen, P. Acknowledgment of Testator's Signature.] — A testatrix exhibited a codicil to her last will, which was entirely in her own handwriting, to one of the attesting -witnesses, telling her she had something which required two witnesses. Subsequently, the second attesting witness hav- ing come into the room, was asked, either by the testatrix or by the other attesting witness in her presence, to sign it, and they both signed, but the testatrix did not tell them that it was a testamentary paper, nor did they know what sort of paper it was that they had attested. They did not recollect seeing the testatrix sign, but one of them was clear that her signature was there at the time they signed : — Held, that this was a sufficient acknowledgment by the testatrix of her signature, and that the codicil was entitled to probate. Daintvee v. Fasulo, 13 P. D. 102 ; 57 L. J., P. 76 ; 58 L. T. 661— C. A. Affirming 52 J. P. 87— Butt, J. Attestation — Sufficiency of.] — Where a witness in fact attested a testator's signature, but the form of attestation described him as only attest- ing the signatures of two other witnesses (the attestation of one of whom was irregular), pro- bate of the will was granted. Mason v. Bishop, 1 C. & E. 21— Williams, J. A., having made his will in 1880, by which he gave the income of his property to his wife B., fell ill in 1887, and, being in anticipation of death, signed the following document : — " 1887, March 1. — I give all my insurance money that is coming to me to my wife B. for her o-wn use, as well as 2001. in the bank. This is my wish. — A., witness, C." This document was, at A.'s request, placed with his will, and remained there till his death in April, 1887. Evidence having been admitted as to the circumstances attending the execution of the document : — Held, that it was intended as a testamentary instrument, and, not having been properly attested according to the Wills Act, could not take effect as a will. Hughes, In re, 59 L. T. 586 ; 36 W. R. 821— C. A. Printed Form — Attestation on first Page — Second Page excluded.] — A will was written on a printed form by a testator's directions, and was contained partly on a first page and partly on a second. The attestation was at the bottom of the first page, and there was no attestation on the second page. The court excluded the second page from probate. £irt, In Goods of (2 L. E., P. 214), distinguished. Malen, In Goods of, 54 L. J., P. 91 ; 33 W. E. 825 ; 50 J. P. 262— Butt, J. Witness Signing Husband's Name.] — A will was signed by the deceased in the presence of two persons, one of whom subscribed it with his own name and the other with the name of her husband : — Held, that the will was not properly attested. Lererington, In Goods of, 11 P. D. 80 ; 55 L. J., P. 62— Butt, J. Evidence — Attesting Witness not to be found — Affidavit.] — In a suit for revocation of probate on the grounds of undue execution, and incapacity, where it appeared that every effort had been made to find one of the attesting witnesses, but without success — the court allowed the affidavit made by him eight years before, at the time of proving the will at the district registry, to be admitted as evidence of execution and capacity. Gornall v. Mason, 12 P. D. 142 ; 56 L. J., P. 86 ; 57 L. T. 601 ; 35 W. E. 672 ; 51 J. P. 663— Butt, J. 2. ATTESTATION BY PAETIES INTERESTED. Solicitor— Professional Charges.] — A declara tion in a will that a solicitor, who is an executor trustee of the wUl, may charge profit costs for 2003 WILL — lievocation. 2004 work done for the testator's estate, confers a ■beneficial gift or interest on him, within s. 15 of the Wills Act, 1837, and is therefore void where the solicitor trustee has been one of the attesting witnesses of the will. Pooley, In re, 40 Ch. D. 1 ; 58 L. J., Ch. 1 ; 60 L. T. 73 ; 37 W. E. 17— C. A. Insolvent Estate.]— A., being entitled to a life interest in a fund over which she had a testamentary power of appointment, borrowed, in 1871, from B., 350Z. on the security of a covenant that 1 ,2502. should be paid one month after her death. She died in 1884, having by her will appointed executors, and directed pay- ment of her debts, and also that C. , one of her executors (a solicitor), should be entitled to charge and receive payment for all professional business to be done by him under the will. C. was one of the attesting witnesses. In an ad- ministration action by B. on behalf of himself and all other creditors, the estate being in- solvent : — Held, that C, as an attesting witness, was prohibited by the Wills Act, s. 15, from receiving that which was not a debt of which payment could be enforced at law, but a bene- ficial gift, which could only be claimed by virtue of the direction in the will ; and (semble) that even if he had not attested the will, the direction authorising him to charge for his professional services operated by way of bounty only, and, the estate being insolvent, could not take effect as against the creditors. Barber, In re, Burqess V. Vinnicome, 31 Ch. D. 665 ; 55 L. J., Ch. 373 ; 54 L. T. 375 ; 34 W. K. 395— Chitty, J. OfWill and Codicils— Bequest under 'Will.]— A testator by his will gave bequests to his employ^ ; one of the employfe had attested the will and also two codicils that confirmed the will ; another employ^ had attested the codicils but not the will: — Held, that the former employ^ could not take the gift, but that the latter was not incapacitated from taking under the will. Marcus, In re, Marcus v. Marcus, 57 L. T. 399— North, J. Acceleration of Interests.] — A testator devised and bequeathed all his real and persolial estate to his wife for life, and after her death to be equally divided between such of his children as should be living at her death ; and in case of any of the above-mentioned children dying before his vrife leaving children, such children were to take their parent's share. And in the event of any of his daugljt.ers being married at his wife's decease, it was his will that such proportion as they might be entitled to should be left to them and their children exclusively, and should in no way be controlled by their husbands. At the death of the testator's widow one of his daughters was living who had several children. Her husband was an attesting witness to the will, and consequently the gift to her was void under s. 15 of the Wills Act : — Held, that the daughter's children were not to be dis- appointed by her disability, but took an imme- diate interest in her share as tenants in common. Clarlt, In re, Clarh v. Randall, 31 Ch. D. 72 ; 55 L. J., Ch. 89 ; 53 L. T. 591 ; 34 W. B. 70— V.-O. B. Gift by will of real and personal estate upon trust to convert and pay the income of the pro- ceeds to A. for life, and after A.'s death to pay the capital and income thereof untO'the child or children of A. in equal shares, with gifts over in case A. should die without leaving issue living at his death. The will had been attested by A.'s wife, so that the gift of a life interest to- him was void under !s. 15 of the Wills Act.. There were no children of A.'s marriage;. The personal estate was exhausted and the trust funds represented real estate only :— Held, that until A. had a child the gifts upon the determi- nation of A.'s life estate could not be accelerated, and that during the life of A. and so long as he had no children, the income of the trust funds ■ was undisposed of, and belonged to the heir-at- law, and could not be accumulated for the benefit of the persons contingently entitled in remainder. . Jull V. Jacols (3 Ch. D. 703) distinguished. Hodgson v. Earl of Bectwe (1 H. & M. 376), and Bumble, In re (23 Ch. D. 360), explained.. Totmisend, In re, Tovmsend v. Townsend, 34 Ch.. D. 357 ; 56 L. J., Ch. 227 ; 55 L. T. 674 ; 35 W.. K. 153— Chitty, J. V. EEVOCATION. Presumption — Duplicates — One in Testatrix's-. Possession Missing.] — Where a will has been executed in duplicate, one only being retained by the testatrix, and such duplicate is not forth- coming after her decease, the presumption of law is that she destroyed it animo revocandi. The court, while doubting whether this pre- sumption must necessarily arise on the bare fact of one of the duplicates having disappeared, and while suggesting that a stronger presump- tion was necessary in cases where a duplicate will was known to a testator or testatrix to be in existence, nevertheless felt bound by the authority of an unreported case of Luxmoore v. Chamibers, and held, that the presumption of law must be upheld, that the will was duly revoked, and that the testatrix died intestate. Jones V. Harding, 58 L. T. 60; 52 J. P. 71— Butt, J. Codicil — No Will.] — See Gardiner v.. CouHliope, ante, col. 1994. Substitution — Two Wills.] — A testatrix, having made a formal will, subsequently executed a holograph will, which did not contain residuary or revocation clauses, nor any powers for the administration of the estate, such as the first will did : — Held, that, as the second will disposed of all the property of the testatrix, it was to be taken to be in substitution for, and must be admitted to probate in exclusion of the first will. Tumour, In Goods of, 56 L. T. 671 ; 50 J. P. 344 — Hannen, P. See also ante, cols. 1994- 1997. Destruction — Incorporated Docnment— Testa- mentary Intention.]— Because part of the will of a testator fails by reason of some legal objec- tion to it, it is not, therefore, to be regarded as- struck out of the will for all purposes. Although, so far as the law intervenes, a clause may be inoperative, it may still be read with a view ta ascertaining the general testamentary intention. A testator, who died in May, 1886, by his will, dated in Dec. 1871, disposed of all his property in favour of his children, and declared that whereas he had advanced, or might advance, for- 2005 WILL — Revocation . 2006 the benefit of his children, certain suma towards their advancement in life or for tlieir benefit, and all which sums respectively would appear and be mentioned in a book marked "A," and signed by him, every sum of money appearing or mentioned in such book to have been so advanced or paid on account of any child should be taken in or towards satisfaction of such child's share, and brought into hotchpot. In Jan. 1886 the testator tore from the book marked " A " several leaves, upon which entries of such ad- vances had been written, and directed them to be burnt in his presence, and wrote on the book, the cover of which was preserved, a memorandum, stating that the book had been destroyed by him. It appeared that some of the sums advanced had been advanced before the date of the wUl, and others subsequently. An originating summons was taken out for the purpose of determining the effect of the above clause : — Held, that the book would probably have been admitted to probate if it had contained writing ; and that if a document formed part of a will it was liable to revocation in the same manner as the will itself : — Held, therefore, that, as the book had been destroyed by the testator, no sum advanced by him, whether before or after the date of the wiU, could be brought into hotchpot. Coyte, In re, Coyte v. Coyte, 56 L. T. 510— Chitty, J. Scratching out of Signatures.] — A will which after execution had remained in the custody of deceased was found in her repositories after her death with her own signature and the signatures of the attesting witnesses scratched out as with a, knife : — Held, that there was a revocation within the requirements of s. 20 of the Wills Act. Morton, In Goods of, 12 P. D. 141 ; 56 L. J., P. 96 ; 57 L. T. 501 ; 35 W. E. 735 ; 51 J. P. 680— Butt, 3. A testator two days before his death, being paralysed on one side and partly speechless, intimated to the two medical men in attendance on him his desire to make a will. They inter- preted his wishes by signs and wrote them down on a card. He executed the document by making his mark, which however appeared in the middle of the writing, and they then put their initials as witnesses at the back. Subse- quently, after a conversation with one of the testator's relatives, they returned to his room, and telling him that they had taken on them- selves more responsibility than they ought to have taken, and that what they had written must be regarded as a memorandum, they erased their initials at the back. The testator seemed to acquiesce in this, but the card was found after his death in a handbag which he kept near his bed, and there was evidence that he had shown it to the lady whom he intended it to benefit, telling her it was for her, and wished her to take it : — Held, that what passed at the erasure of the witnesses' initials did not amount to a revocation. Margary v. Robinson, 12 P. D. 8 ; 56 L. J., P. 42 ; 57 L. T. 281 ; 35 W. K. 350 ; 51 J. P. 407— Hannen, P. Hutilation — Bevocation of Appointment of Executors.] — A testator by his will appointed two executors, with the usual directions as to payment of debts, &c. He also appointed the same persons trustees, with directions to pay the income arising from his property to his wife and his only sou in equal shares during her life or widowhood, and after her death or remarriage the whole estate was bequeathed to the son absolutely. There were also alternative trusts in the case of the son dying in the wife's life- time, either unmarried or married leaving chil- dren. After his death the will was found with the clause appointing executors cut out of it, and there was evidence of declarations by the testator that he had cut it out with a pair of scissors, with the intention of cutting out the name of one of the executors. The wife died in the lifetime of the testator, and in the events which had happened at his death the son was the only person entitled to the estate : — Held, that the appointment of executors was revoked by the mutilation of the will ; that the trustees were not executors according to the tenor ; and that the son was entitled to a grant of adminis- tration with the will annexed. Maley, In Goods of, 12 P. D. 134 ; 56 L. J., P. 112 ; 57 L. T. 500 ; 35 W. E. 764 ; 51 J. P. 423— Hannen, P. Burning — Conditional — Revival of Earlier Will.] — The destruction of a last will by burn- ing or otherwise, does not revive an earlier will ; and therefore where a testatrix caused her last will to be destroyed by burning it, at the same time expressing a wish that the provisions of an earlier will (which had been in terms revoked by a clause in the said last will) should there- upon again become operative : — Held to be only a conditional revocation of the last will, and that as the condition was inoperative the act of destruction was nugatory and the last will was still valid and subsisting and was entitled to probate. Welch v. Gardner, 51 J. P. 760 — Hannen, P. Obliteration — "Writing Declaring an Inten- tion to Eevoke."] — The testator had obliterated the whole of a codicil, including his signature, by thick black marks, and at the foot of it had written the words, signed by himself and attested by two witnesses : — "We are witnesses of the erasure of the above": — Held, that the codicil was revoked, for the words above men- tioned were " a writing declaring an intention to revoke " it within s. 20 of the Wills Act. Gosling, In Goods of, U P. D. 79 ; 55 L. J., P. 27 ; 34 W. E. 492 ; 50 J. P. 263— Butt, J. VI. REPUBLICATION. Of Married Woman's Will, when Discovert.] -See Taylor, In re, ante, col. 1992. VII. PKOBATE AND LETTERS OF ADMINISTRATION. 1. JUEISDI-CTION. Administration, Letters of — Proceeds of Realty.] — The proceeds of real property sold under the Settled Estates Acts, and not yet con- verted into realty, have not become personal property in respect of which letters of adminis- tration can be granted. Lloyd, In Goods of. 2007 9 P. D. P. 456- WILL — Probate and Letters of Administration. 2008 65 ; 53 L. J., P. 48 ; 32 W. B. 724 ; 48 J. -Butt, J. Somicil of Testator.]— <&« Inteenational Law, III. 2. TO WHOM GEANTED. a. Probate. Executor according to the Tenor.] — A testator by his will said, " I appoint E. H. P. and J. E. W.," but did not state in what capacity he appointed them. He also bequeathed legacies to "each of my executors," and gave to his "said executors" the residue of his property, with certain directions as to it. The court held, upon motion, that by the words of the will E. H. P. and J. E. W. were appointed executors, and granted probate to them accordingly. Bradley, In Goods of, 8 P. D. 215 ; 52 L. J., P. 101 ; 32 W. E. 824 ; 47 J. P. 825— Hannen, P. Trustee.] — Directions to get in the estate of the testator, and to distribute it in a certain manner after the payment of all funeral and other expenses : — Held, sufficient to constitute a trustee an executor according to the tenor. Lush, In Goods of, 13 P. D. 20 ; 57 L. J., P. 23 ; 58 L. T. 684 ; 36 W. E. 847 ; 52 J. P. 199— Hannen, P. A testator bequeathed all he died possessed of " to my two children, subject to the following limitations : — I wish to appoint N., K., and C. my trustees for the objects of this my will, everything I have to be vested in them." The will then declared the trusts of the property to be so vested in the trustees. The trustees were not connected with the ascertainment or realiza- tion of the assets, but were, for the greater part, connected with property to be retained and held by the trustees for the use of the cestui que trusts. The will concluded by giving certain directions as to the testator's burial : — Held, that N., K., and C. were entitled to probate as executors according to the tenor. A direction to pay the testator's debts is not indispensable to the appointment of an executor according to the tenor. McCane, In Goods of, 21 L. E.,Ir. 1 — C. A. A testator bequeathed a part of his household furniture to his wife, and all his personal pro- perty (and real, if any), consisting of books, &c., money in bank, together with all household fur- niture possessed by him before marriage, or pur- chased by him subsequently, to three trustees, upon trust as to the said furniture for his son A. (or if he should not be alive at the testator's death, for M.), to pay over to A. 1000^., and to invest the remainder of the te.stator's money upon other specified trusts, and he gave direc- tions as to his funeral not addressed to the trus- tees : — Held, that the trustees were not executors according to the tenor. Gray, In Goods of, 21 L. E., Ir. 249— C. A. In a will there was a bequest of all property to three trustees upon trust, first to manage the same as they might think best for those in- terested, but to invest no part of the same except upon securities within the United Kingdom ; secondly and thirdly, to pay the annual proceeds and capital of the property on specified trusts : — Held, that the trustees were executors accord- ing to the tenor. Hamilton, In Goods of,n L. E., Ir. 277— Prob. Where the court can gather from the words of a will that a person named therein is required to pay the debts, and generally to admimster the estate, it will grant probate to such person, as executor according to the tenor. Bluett, In Goods of, 15 L. E., Ir. 140— Prob. See also Malcy, In Goods of, ante, col. 2006. J. Lettbes op Admisisteation. Next-of-Kin — Persons equally entitled — Selection.] — In a contest among next-of-kin prima facie equally entitled to administer to the estate of a deceased relative, the choice of the fittest person should be made on summons before one of the registrars, according to the practice in the Probate Division, and parties improperly brought into court on motion will be entitled to their costs. John, In Goods of, 58 L. T. 683 ; 52 J. P. 232— Butt, J. Divorced Wife not cited.] — Administra- tion of the estate of a deceased intestate whose marriage had been dissolved by the High Court of Judicature in Bombay, granted to his next- of-kin without citing the divorced wife. Nares, In Goods of, 13 P. D. 35 ; 57 L. J., P. 19 ; 58 L. T. 529 ; 36 W. E. 528 ; 52 J. P. 231— Butt, J. Guardian of Minor.] — The next-of-kin of a minor, the universal legatee, were an uncle who was abroad, an aunt who was in poor circum- stances, and another aunt who had renounced. The court granted letters of administration with will annexed for the use and benefit of the minor to a guardian elected by her. Gardiner, In Goods of, 9 P. D. 66 ; 53 L. J., P. 31 ; 32 W. E. 756 ; 48 J. P. 456— Hannen, P. Where upon an application for administration with the will annexed it appeared that the testator's children were minors, the coui't granted administration to a stranger in blood elected by the children as their testamentary guardian, without notice to the next-of-kin entitled to the grant, on proof that one had renounced and that the remainder were at a distance, or that their place of residence was unknown. Weib, In Goods of, 13 P. D. 71 ; 57 L. J., P. 36 ; 58 L. T. 683 ; 36 W. E. 847 ; 52 J. P. 231— Butt, J. Cum Testamento Annexo — Colonial Grant- Substitution of Executors — Administrator- General.] — A testator domiciled in British Guiana by his will appointed two executors — one resident in the colony, the other in England — ^with power of substitution in the event of either or both being unable or unwilling to act. The executor resident in the colony administered the estate on his own behalf and on behalf of the other executor until he returned to this country to reside here permanently. — By the law of the colony an executor under such circumstances had the right to substitute as executor the Administrator - General of the Colony, who thereupon became possessed of all the powers necessary for the administration of the estate. This substitution had been effected by the executor before leaving the colony, and there being estate in this country which required a personal representative here, the court made a 2009 WILL — Probate and Letters of Administration. 2010 grant of administration with the will annexed to persons nominated as his attorneys by the Administrator-General until such time as the Administrator-General or the executor resident in this country who had not renounced should apply, and without requiring justifying security, mach, In Goods of, 13 P. D. 5 ; 57 L. J., P. 20 ; 36 W. E. 400— Butt, J. Attorney of Executor— Deatli of Executor — Administration de bonis non.] — A. obtained a grant of administration with a foreign will annexed as the attorney in England of B., the executor of C, the testatrix. After B.'s death a similar grant was made to D. as the attorney in England of A.'s executors : — Held, that the chain of representation was not broken by the grant of administration to the attorney of the original testatrix, and that D. was entitled to deal with the property of C. in this country without a grant of administration de bonis non. Del Carmen Vea Murguia, In Ooods of, 9 P. D. 236 ; r.3 L. J., P. i7 ; 32 W. R. 799 ; 48 J. P. 711— Butt, J. Interest— Sister or Widow.] — In a con- test for administration with the will annexed the court preferred the sister of the testator to the %^'idow, as it appeared that the sister, as a legatee, had the larger interest in the property to be distributed. Homan, In Goods of, 9 P. D. (il ; 52 L. J., P. 94 ; 31 W. E. 955— Hannen. P. De Bonis non— No known Relations.] — An intestate having died without known relations, his estate was administered by his widow, who, before having completed the administration, died, leaving a will. The court made a grant de bonis non to the residuary legatee of the widow, the nominee of the Duchy of Lancaster. Avard, In Goods of, 11 P. D. 75 ; 56 L. T. 673 — Hannen, P. No Besidne — Specific Legatee, without Citation or Bennnciation of Besiduary Legatee,] — Upon an application for a grant of adminis- tration de bonis non it appeared that the residuary legatee resident abroad had had notice by letter, and that he had no beneficial interest, there being actually no residue : — Held, that the grant might be made to a specific legatee, without requiring the residuary legatee to be cited, or to renounce. Wilde, In Goods of, 13 P. D. 1; 57 L. J., P. 7; 57 L.T. 815 ; 36 W. E. 400 : 51 J. P. 775— Hannen, P. Creditor — Insolvent Estate.] — ^The assets being insufiicient to pay an intestate's debts and being in the hands of an executor de son tort, who was sued by the creditors, the court granted adminis- tration to one creditor, vrith the consent of the others, he undertaking to administer the assets raieably. Willett, In Goods of, 21 L. E., It. 377 — Prob. Poor Law Guardians — Deceased Pauper Lunatic — Expense of Maintenance.] — The de- ceased had, for over six years prior to her death, been supported as a pauper lunatic at the county lunatic asylum. During the whole of this period she was, in fact, entitled to an annuity of 2il. 16s. 6d., payable by the Commissioners for the Reduction of the National Debt. This fact only came to the knowledge of the guardians at the time of her death, or shortly thereafter : — Held, that the guardians were creditors of the deceased, within the provisions of 12 & 13 Vict, c. 103, ss. 16,17, and, as such, entitled to adminis- tration of her estate. Lambeth Guardians v. Bmdshaw, 57 L. T. 86 ; 50 J. P. 472— Butt; J. To Nominee of Creditor.] — An intestate was the holder of shares in a company on which a call was made after his death : — The court made a grant of administration to the nominee of the company as a creditor of the estate of the deceased. Tomlinson v. Gilby, 54 L. J., P. 80 ; 33 W. E. 800 ; 49 J. P. 632— Butt, J. The court, upon the application of a creditor who had obtained a grant of letters of adminis- tration with the will annexed to the personal estate and effects of his deceased mortgagor, being satisfied that there were special circum- stances bringing the case within s. 73 of the Probate Act, and upon affidavit that the estate was insolvent, rescinded such grant and made a fresh grant in favour of a nominee of the credi- tor, such nominee to be approved by the regis- trar. Brown, In Goods of, 59 L. T. 523— Butt, J. B., a pauper lunatic chargeable to the guar- dians of the Kingston Union, died, a spinster and without parents, leaving three brothers and one sister her surviving, all of whom renounced their right to administration. One other brother, who had gone to America in 1871, but who had not been heard of since 1883, was cited by ad- vertisement, under order of the court. The court, upon the application of the guardians, made a grant of administration to the clerk to the board as their nominee. Byrne, In Goods of, 52 J. P. 281— Butt, J. Nominee.] — The court will, but under special circumstances only, make a grant of administra- tion to a nominee of the parties interested in the estate. Clayton, In Goods of, 11 P. D. 76 ; 55 L. J., P. 26 ; 34 W. E. 444 ; 50 J. P. 263— Butt, J. Duchy of Lancaster.] — Where an in- testate had died leaving no known relatives, and his estate had been partly administered by his widow, who died leaving a will, the court made a grant de bonis non to the nominee of the Duchy of Lancaster, who was the residuary legatee of the widow. Avard, In Goods of, 11 P. D. 75 ; 56 L. T. 673— Hannen, P. Of Creditor.] — See supra. Specific Legatee — No Residue — Citation of Residuary Legatee.] — ^A residuary legatee resi- dent at a known address in Canada, and who was in regular communication with his relatives in England, was informally asked to renounce his right to administer to his father's estate, but made no reply to the letters of the solicitors. The estate was being administered in chancery, and the chief clerk had certified that the assets were insufficient for payment of the debts and specific legacies. The court upon affidavits of these facts ordered a grant of administration in favour of one of the specific legatees. Wilde, In Goods of, 13 P. D. 1 ; 57 L. J., P. 7 ; 57 L. T. 815 ; 36 W. E. 400 ; 51 J. P. 775— Hannen, P. " Special Circumstances " — Married Woman 2011 WILL — Probate and Letters of Administration. 2012 — Bankruptcy of Husband — Grant to Trustee.] — A married woman died intestate, the whole value of her separate estate being 20Z. Her husband shortly afterwards absconded, and was adjudicated a bankrupt : — Held, that the hus- band's right to administration did not pass to the trustee in his bankruptcy under s. 44 of the Bankruptcy Act, 1883, but that there were " special circumstances " to justify a grant to the trustee in bankruptcy under s. 73 of the Probate Act, 1857, without citing the husband. Turner, In Goods of, 12 P. D. 18 ; 56 L. J., P. 41 ; 57 L. T. 372 ; 35 W. E. 384— Butt, J. See also Brown, In Goods of, supra. Attorney — Limited Grant — Foreign Law — Evidence.] — By the law of Kussia- all testamentary instruments executed by members of the Im- perial family are disregarded, and the disposition of the property of such persons after their death is within the exclusive power of the Emperor of Eussia. Oldenlerg (^Prince), In Goods of, 9 P. D. 234 ; 53 L. J., P. 46 ; 32 W. E. 724 ; 49 J. P. 104— Butt, J. A., a member of the Eussian Imperial family, died in Eussia, having executed a will by which he appointed B., his son, as his executor. After A.'s death a meeting of the members of his family was held, and an arrangement for the disposition of his property in accordance with the terms of his will was agreed to, and was embodied in a document termed an " Acte D6- finitif," which was subsequently confirmed by the Emperor of Kussia ; and by the terms of the " Acte Difinitif " B. was constituted the sole and entire owner of certain shares held by the deceased in a railway company having its offices in England. The court upon a certificate from the Eussian ambassador in England, with the seal of the Eussian embassy, reciting that the law of Eussia is as stated above, and that, under the " Acte D^finitif," B. was the sole and entire owner of the railway shares, made a grant to the attorney of B. of letters of ad- ministration with the " Acte D^finitif " annexed, limited to the property of the deceased in Eng- land, lb. 3. ADMINISTEATION BOND. Seduced Penalty — Eeduetion of Estate- Grant to Attorney.] — A widow died intestate, leaving seven infant children, and a grant of administration was made to A., as guardian of the infants, for their use and benefit, till one of them should attain the age of twenty-one. A. absconded, after misappropriating part of the personal estate of the deceased. One of the daughters of the deceased, who had attained the age of twenty-one and was resident abroad, afterwards appointed B. as her attorney to obtain a grant of administration in England of her mother's estate, for her use and benefit, till she should apply for a grant of administration. The court allowed the attorney to give an administration bond for an amount representing the present value of the estate of the deceased. HalKwell, In Goods of, 10 P. D. 198 ; 54 L. J., P. 32 ; 33 W. E. 371 ; 49 J. P. 233— Hannen, P. Sureties.] — The court will not by reason of the property being large and the risk small, dispense with sureties to an administration bond, or lessen the amount to be secured. But it vrill allow the security to be made up of any number of bonds. Earle, In Goods of, 10 P. D. 196 ; 54 L. J., P. 95 ; 34 W. E. 48 ; 49 J. P. 761 —Hannen, P. S. P., McGowan, In Goods of, 10 P. D. 197 ; 34 W. E. 48 ; 49 J. P. 761— Hannen, P. Assignment of, to Creditor.] — Since the Pro- bate Act, 1857, an unpaid creditor of a deceased intestate is entitled to an assignment of the administration bond. A motion for the assign- ment of an administration bond should be on notice. Harding, In Goods of, 15 L. E., Ir. 186 — Prob. 4. EEVOCATION OF GEANT. Absconding Administrator — New Grant to Next of Kin.] — A grant of administration of the estate of an intestate was made to a creditor, who, after his debt had been fully satisfied, absconded, and could not be found : — A personal representative of the estate being required in an action in the Chancery Division, the court revoked the grant to the creditor without citing him, and made a new grant to the sole next-of- kin of the deceased. Bradshaw, In Goods of, 13 P. D. 18 ; 57 L. J., P. 12 ; 58 L. T. 58 ; 36 W. E. 848 ; 52 J. P. 56— Butt, J. Married Woman intermeddling with Estate.] — Administration with the will annexed was granted to a woman who intermeddled with the estate, and subsequently married. Her husband deserted her and could not be found, and an application was accordingly made for a revoca- tion of the grant, and a fresh grant to another person : —Held, that the administratrix having intermeddled with the estate the grant could not be revoked. Beid, In Goods of, 11 P. D. 70 ; 55 L. J., P. 75 ; 54 L. T. 590 ; 34 W. E. 577— C. A. AflBzming 50 J. P. 263— Butt, J. Jurisdiction of Chancery Division.] — Though the Chancery Division may have jurisdiction to recall the probate of a will, it ought not, as a general rule, to exercise that jurisdiction, even if the estate of the testator is in court in a proceeding in that division. Pirmey v. Mv,nt (6 Ch. D. 98) followed. Bradford v. Towivg, 26 Ch. D. 656 ; 54 L. J., Oh. 96 ; 50 L. T. 707 ; 32 W. E. 901— Pearson, J. Jurisdiction of Probate Division.] — Semble, the Probate Division has exclusive jurisdiction to revoke probate of a will. Priestman v. Thomas, 9 P. D. 210 ; 53 L. J., P. 109 ; 51 L. T. 843 ; 32 W. E. 842— C. A. Forgery — Estoppel.] — In an action in the Probate Division, T. and G. propounded an earlier and P. a later will. The action was com- promised, and by consent verdict and judgment were taken establishing the earlier will. Subse- quently P. discovered that the earlier will was a forgery, and in an action in the Chancery Divi- sion, to which T. and G. were parties, obtained the verdict of a jury to that effect, and a decree that the compromise be set aside. In another action in the Probate Division for revoca- tion of the probate of the earlier wiU : — Held, .2013 WILL — Probate and Letters of Administration. 2014 that T. and G. were estopped from denying the .forgery. lb. Effect of— Sale of Leaseholds.]— A grant of letters of administration obtained by suppressing ;a will containing no appointment of executors is not void ab initio, and accordingly a sale oE lease- holds by an administratrix who had obtained a grant of administration under such circum- stances to a purchaser who was ignorant of the : suppression of the will was upheld by the court, although the grant was revoked after the sale. Jibramv. Ciinningham(2'Lev. 182) distinguished. Boivall V. JBoxall, 27 Oh. D. 220 ; 53 L. J., Ch. 838 ; 51 L. T. 771 ; 32 W. K. 896— Kay, J. 5. PKACTICE RELATINa TO. Citation — Service on Person oftlnsonnd Mind.] — Form of order for service of citation on a j)erson of unsound mind, not so found by .inquisition. JJ'CormicJi v. JSeyden, 17 L. E., Ir. 338— Prob. Executor possessing Mmself of Assets.] — ^Where an executor possessed himself of part of the personal estate of the deceased without •obtaining probate, and did not appear to a Kjitation which had been issued by a legatee to bring in and prove the will, the court, on the -application of the legatee, made a conditional •order that the executor should, within a limited •time, extract probate. Clime, In Goods of, 15 L. E., Ir. 470— Prob. Widow interested, a Lunatic — Heir-at- law represented.] — In a probate suit the person interested in establishing an intestacy were the widow of the testator and his brother, the heir- at-law. The widow was a lunatic confined in an asylum in Australia, and as the heir-at-law had already appeared as a party in the suit the ■court refused to order the widow to be cited to see proceedings. Ward v. Huolde, 12 P. D. 110 ; .56 L. J., P. 110 ; 57 L. T. 495 ; 35 W. E. 736— Hannen, P. Presumption of Death— Notice to Insurance ■ Company. ] — Where the estate of a person whose death the court were asked to presume consisted in part of a policy of assurance on his life, the •court ordered that notice of the application should be given to the insurance company. Barber, In Goods of, 11 P. D. 78 ; 56 L. T. 894 ; 35 W. E. 80— Butt, J, Amending Grant- Property Abroad— Foreign ■Court.] — An intestate died leaving personal estate to the amount of 2151. in this country, and 6,100Z. in the Italian rentes. The Italian court refused to grant the authority required to deal with the property within its jurisdiction, on the ground that the letters of administration granted by the Court of Probate here were on the face of them limited to the smaller amount in this country, and that this court, if it had been made aware of the full value of the estate, would have required greater security for its administration. The court allowed the letters of admini8tra,tion to be amended — ^the Board of Inland Eevenue having signified its consent to accept the succes- sion duty on the Italian rentes as probate duty — so as to state on the face of them that the larger sum was'^also included. Henley, In Goods of, 11 P. D. 126 ; 55 L. J., P. 61 ; 56 L. T. 895 ; 35 W. E. 184 ; 50 J. P. 520— Hannen, P. Subpoena to bring Scrip into Registry — Con- tempt of Court.] — Where a writ of subpoena was issued in a non-contentious matter directing E., a solicitor, to bring into the Probate Eegistry a scrip which was stated to be, but which was not in fact, in his possession or control : — Held, that his non-compliance with the subpoena was not under the circumstances a contempt ; that the fact that he had not followed the practice general in such a case (and compulsory in a con- tentious matter) of filing an aifidavit explaining the reason for his non-compliance, with which practice he was acquainted, was not a contempt. Emmerson, In re, RawUngs v. Emmerson, 57 L. J., P. 1— C. A. Interrogatories — Undue Influence.] — The plaintiff sued to recall probate on the ground that the testator was not of sound mind, and that the will was obtained by the undue in- fluence of the defendants, two of whom were the executors, and the third universal legatee. The plaintifE delivered interrogatories for the examination of the defendants, asking what sums they had received from the testator by way of payment for seiTices, loan, or gift, and whether the universal legatee had since the death of testator made over any and what part of the property to the other defendants. The defendants declined to answer these interroga- tories as irrelevant : — Held, that the interroga- tories must be answered, the period in the first interrogatory being limited to three years. Sol- loioay. In re. Young v. TloUoway, 12 P. D. 167 ; 56 L. J., P. 81 ; 57 L. T. 515— C. A. Particulars — TTndue Influence.] — The defen- dant in a probate action alleged that the will had been procured by the undue influence of the plaintifE " and others." The plaintifE applied for particulars of the names of the persons charged with undue influence and particulars of the acts of undue influence alleged, and the times when and places where each of the acts was alleged to have taken place. The President ordered the defendant to give the names of the persons charged with undue influence, but re- fused to order him to give particulars of the acts : — Held, that as it was admitted to have been the long-settled practice of the Probate Court, and subsequently of the Probate Division, not to require a party alleging undue influence to give particulars of the acts of undue influence, such practice ought not now to be disturbed ; and semble (per Lindley and Fry, L.JJ.), that this rule of practice was founded on good reason. Salisbury dLord) v. JS'ugent, 9 P. D. 23 ; 53 L..J., P. 23 ; 50 L. T. 160 ; 32 W. E. 221— C. A. Incapacity.] — In an action for probate the court will not order particulars to be given of incapacity. HanMnson v. Barningliam, 9 P. D. 62 ; 53 L. J., P. 16 ; 32 W. E. 324 ; 48 J. P. 24— Hannen, P. Receiver — Injunction — Executor intermed- dling with Estate.] — An executor before obtain- ing probate, and without the consent of his co-executor, intermeddled with assets and made preparations to sell them. The court granted leave to the co-executor to issue a writ for an 2015 WILL — Construction. 2016 iniunction and for a receiver. Moore, In Goods of, 13 P. D. 36 ; 57 L. J., P. 37 ; 58 L. T. 386 ; 36 W. E. 576 ; 52 J. P. 200— Hannen, P. Application before Probate — Chancery Division.] — The Judicature Act, 1873, s. 25, sub-s. 8, enables any judge of the High Court to appoint a receiver of a deceased's estate (before grant of probate or administration), notwith- standing the absence of lis pendens ; but applica- tions for any such order being on the way to probate proceedings are properly made in the Probate Division, and if made elsewhere will not be encouraged. Parlier, In re, Bearing v. Broolii, 54 L. J., Ch. 69i— Chitty, J. Parties — Striking out.] — In a probate suit, out of nine defendants on the record eight had been cited and had not appeared. The remain- ing one, who was resident in New Zealand, had not been served. The court, at the hearing, allowed him to be struck off the record, and the case to proceed against the other eight defen- dants. Brewitt v. Brewitt, 58 L. T. 684 ; 52 J. P. 232— Butt. J. Evidence — ^Affidavit.] — In a probate suit the court allowed an aflSdavit, used on a motion formerly made in the suit, and sworn by a wit- ness who had been subpoenaed but was unable to attend, owing to his being, at the time of the hearing, engaged as a witness elsewhere, to be put in evidence, and treated the application as made before the trial under Ord. XXXVII., r. 1. n. See also Gornall v. Mason, ante, col. 2002. Duchy of Cornwall. ] — On motion for grant of letters of administration of an in- testate's effects to His Eoyal Highness the Prince of Wales, as Duke of Cornwall, it is not necessary, if the facts are sufiiciently set forth in the warrant, that they should be verified by affidavit. Grifith, In Goods of, 9 P. D. 63 ; 53 L. J., P. 30 ; 32 W. E. 524 ; 48 J. P. 312— Hannen, P. As to Birth or Death.] — Upon an appli- cation for administration to the estate of a child, the court allowed the birth and death of the child to be proved by evidence of declarations by its deceased mother. TJwmpson, In Goods of, 12 P. D. 100 ; 56 L. J., P. 46 ; 57 L. T. 373 ; 35 W. E. 384— Hannen, P. Pleading — Embarrassing Matter.] — The plain- tiff propounded for probate a will of September, 1880. A defendant counter-claimed to prove a will of May, 1881. The plaintiff replied (inter alia) that the testatrix was not of sound mind when she executed the will of May, 1881-; and (5) that if she did duly execute it when of sound mind, she duly revoked it by a will of June, 1881, executed when she was in a similar state of mind : — Held, that clause 5 of the reply ought not to be struck out as embarrassing. Bigg v. Hughes, Smith, In re, 9 P. D. 68 ; 53 L. J., P. 62 ; 50 L. T. 293 ; 82 W. R. 355— C. A. Costs — Intervention — Two Sets. J — Where an intervener in a probate suit had been cited to appear by the defendants, the unsuccessful parties, and had been charged by them with procuring the will by undue influence, the court, in pronouncing for the will, departed from the usual practice of allowing only one set of costs, and condemned the defendants in the costs of the intervener as well as of the executors. Tennant V. Cross, 12 P. D. 4 ; 56 L. J., P. 74 ; 57 L. T. 372— Butt, J. New Trial — Misdirection— Grounds in Notice.] —Ord. XXXIX., r. 3, which requires that the- grounds on which misdirection is alleged should be stated in the notice of motion for a new trial, applies to motions in the Probate Division as. well as to the Queen's Bench Division. Pfeiffer V. Midland Railway Company (18 Q. B. D. 243) followed. Murfett v. Smith, 12 P. D. 116 ;. 56 L. J., P. 87 ; 57 L. T. 498 ; 35 W. R. 460 ; 51 J. P. 374— D. Appeal direct from Chambers.]- Appealsfrom orders made in chambers are to be subject to the same rules in the Probate Division as in the Chancery Division, and will not be entertained unless the judge gives leave to appeal direct, or certifies that he does not require to hear further argument. Ri-gg v. Hughes, Smith, In. re, supra. Tin. CONSTEUCTION. 1. GENERAL PRINCIPLES. Inconsistent Clauses.] — Effect must be given to every part of a will if possible. But if two' clauses are so irreconcileable as to be incapable of bearing a connected meaning, the earlier clause should be discarded, and effect given to the later one. Biggar v. Eastwood, 15 L. E., Ir. 219— M. R. Printed Form.] — Where a testator, using a common printed form of will, gave, devised, and bequeathed all his real and personal property and estate to Albert Twiddy Hart, with certain exceptions, and then, after a blank, came a full residuary clause in print unto Edmund Twiddy Hart, Amelia Collins, and Albert Dalby and John Collins, to and for their own use and benefit absolutely : — Held, that nothing re- mained upon which the second gift could operate, and that the first gift prevailed. Spencer; In re. Hart v. Mansion, 54 L. T. 597 ; 34 W. E. 527— V.-C. B. Foreign Will.] — If a domiciled Englishman makes a will expressed in the technical terms of the law of a foreign country, so as to manifest an intention that it should operate according to that law, the meaning of the will must be ascer- tained by the foreign law, and then an equiva- lent effect must be given to the will in England. Studd V. Cooh (8 App. Cas. 577) discussed. Bradford v. Toung, 26 Ch. D. 656 ; 54 L. J., Ch. 96 ; 50 L. T. 707 ; 32 W. E. 901— Pearson, J. An English will by a testator domiciled in Lower Canada must be interpreted with regard to the law of Lower Canada, and not that of England. Mo Gibbon v. AVbott, 10 App. Cas. 653 ; 54 L. J., P. C. 39 ; 54 L. T. 138— P. C. Eule of Construction — Eule of Law.] — A rule of construction is one which points out what a court shall do in the absence of express or implied intention. A rule of law is one which takes effect when certain conditions are found, although a testator may have indicated an in- 2017 WILL — Construction. 2018 tention to the contrary. Coward, In re, Coward, V. Zarkman, 57 L. T. 285 — C. A. Costs of obtaining Decision of Court.]— Where a testator has used doubtful language, it may be right for those interested to have recourse to the court to ascertain the true construction of his will, and to throw the necessary costs upon the fund in dispute. When the decision of the court of first instance has been obtained at the expense of the fund, if either party is dissatisfied, he must, as a general rule, challenge that decision at his own peril. If, however, the appeal be successful, the costs of the appeal may be re- garded as part of the unavoidable expense of obtaining a correct decision. Dillon v. Arkins, 17 L. E., It. 636— C. A. 2. INACCUEACIES— PAEOL EVIDENCE TO EXPLAIN. Supplying Blank — Fewer to look at Original Will.] — For the purpose of construing a will the court is entitled to look at the original will as well as at the probate copy. Harrison, In re, Turner v. Hellard, 30 Ch. D. 390 ; 55 L. J., Ch. 799 ; 53 L. T. 799 ; 34 W. K. 420— C. A. Name of legatee in blank.] — A testatrix, in making her will, used a law stationer's form, which was partly in print, blanks being left in it which were to be filled up by the person who made use of it. After directing that her debts and funeral and testamentary expenses should be paid by her executrix thereinafter named, the testatrix gave all her property, both real and personal, " unto to and for her own use jind benefit absolutely, and I nominate, consti- tute, and appoint my niece, Catherine Hellard, "to be executrix of this my last will and testa- ment : " — Held, that there was an effectual gift •of the residue to Catherine Hellard. Harrison, In re. Turner v. Hellai'd, supra. Admissibility of Parol Evidence.] — Testatrix, who made her will on a printed form, after giving certain legacies, gave all her estate Teal and personal " unto to and for own use and benefit absolutely," and then appointed C. W. C. to pay all her debts, &c., and to be executor of her wUl. The Chief Clerk certified that the testatrix was illegitimate, and that she left no issue or next of kin. The Crown and the executor claimed the residue, and the executor tendered •evidence to prove that the intention of the tes- tatrix was that he should take the residue, if any, for his own benefit : — Held, that, under the peculiar circumstances, parol evidence was ad- missible to rebut the presumption against the executor arising from the blanks in the will, and that the executor, subject to the payment of costs, was entitled for his own benefit to what should remain. Bacon's Will, In re, Ca/mp v. Ooe, 31 Ch. D. 460 ; 55 L. J., Ch. 368 ; 54 L. T. 150; 34 W. K. 319— Kay, J. A testator, after giving legacies to Mary Wyatt, Mathew Wyatt, Frederick Wyatt, Louisa Atwell i(called Wyatt), Maria Weir, and Emily de Vere, proceeded "I give and bequeath to , ■daughter of , holding some situation about the church , the sum of fifty pounds annually during the continuance of her natural life, and I direct my trustees or trustee for the time being to pay to the said the said annuity of fifty pounds . . . and the receipt of the said shall be suflBcient discharge to my trustees or trustee for the time being ; and from the decease of the said I direct," &c. And the testator directed that, " in case any one of my said legatees, Maiy Wyatt, Frederick Wyatt, Mathew Wyatt, Louisa Atwell (called Wyatt), Maria Weir, Emily de Vere, or Marian Elliott," should become bankrupt, &c., her or his legacy should determine, and that the trustees or trustee should pay to her or him, " if in the case of Mary Wyatt, Mathew Wyatt, and Frederick Wyatt, the sum of forty shillings a week," and " if in the case of Maria Weir and Emily de Vere, the sum of thirty shillings a week," and "if in the case of Marian Elliott, the sum of fifteen shillings a week : " — Held, on an originating summons by Marian Furniss (formerly Marian Elliott), supported by an affidavit by her to the effect that she was the daughter of James Elliott, beadle of the pariah church at Epsom, and that the testator was acquainted with her, that she was entitled to the annuity of fifty pounds given by the will. Furniss v. Pliear, 36 W. E. 521— North, J. Clerical Error in Description — Correction by Reference to Context.]— A clerical error may be corrected where, if uncorrected, it makes the will absurd, and the proper correction can be gathered fi-om the context. NoHlien's Estate, In re. Salt V. Pym, 28 Ch. D. 153 ; 54 L. J., Ch. 273 ; 52 L. T. 173 ; 33 W. E. 336— Chitty, J. A testator devised an estate called Lea Kuowl to trustees upon trusts for the benefit of his daughter W., her husband and children, and empowered his trustees, at the request of his daughter W., to sell the estate and stand pos- sessed of the sale moneys upon the trusts there- inbefore declared "concerning the said Lea Knowl estate hereby devised, as to such and so many of them as shall at the time of sale have been existing undetermined and capable of taking effect." He then devised an estate called Croxton to trustees upon similar trusts for the benefit of his daughter C, her husband and children, and empowered his trustees, at the re- quest of his daughter C, to sell the last-men- tioned devised hereditaments and stand possessed of the sale moneys "in trust for such person and persons, and for such estates, ends, intents and purposes, powers, provisoes, and conditions as are hereinbefore limited, expressed, and declared of and concerning the said Lea Knowl estate here- by devised, as to such and so many of them as shall at the time of sale have been existing un- determined and capable of taking effect : " — Held, that the words " the said Lea Knowl estate," in the trusts of the moneys to arise from the sale of the Croxton estate had been inserted in the will through an obvious error ; that to read the words "the said Lea Knowl estate," literally and grammatically, would be making the will lead to a manifest absurdity or incon- gruity, and that the will must be read as if the words " the said Croxton estate " were inserted in the place of the words " the said Lea Knowl estate," in the trusts of the moneys to arise from the sale of the Croxton estate. li. Supplying Omission by Inference.] — The prin- 3 T 2019 WILL — Construction. 2020 ciples on which the court acts in supplying by inference an omission in a- will discussed. An omission may be supplied in the case of independent gifts to strangers, as well as in the case of a series of gifts to children of a testator, or to members of a class. Mellor v. Daintree, 33 Ch. D. 198 ; 56 L. J., Ch. 33 ; 55 L. T. 175— North, J. A testator devised and bequeathed his real and residuary personal estate to trustees, on trust as to one moiety of the personalty and a specific part (being about half in value) of his realty to accumulate the income until B. should attain twenty-five or die, whichever should first happen, in case either of such events should happen within twenty-one years from his own death, but, in case that period should expire before either of such events should happen, upon trust to pay the income to B., if living, from the expiration of such period until he should attain twenty-five or die, whichever should first hap- pen, and, subject as aforesaid, the testator directed that the moiety should be held in trust for B; absolutely in case he should attain twenty- five, and in case he should die under twenty- five, leaving a son or sons him surviving, who, or any one of them, should attain twenty-one, the moiety was, subject as aforesaid, to be held in trust for the only, or, if more than one, the first surviving son of B. who should attain twenty-one. And the testator directed that the second moiety of the personalty and the rest of the realty should be held on trust to accumulate the income until D. should attain twenty-five or die, whichever should first happen within the period of twenty-one years from his own death, and in case that period should expire before either of such events should happen, then upon trust to pay the income to D. (if living) from the expiration of such period until he shauld attain twenty-five or die, whichever should first happen, and, subject as aforesaid, the testator directed that the moiety should be held in ti-ust " for such only surviving son , or, if more than one surviving son, for the eldest of such surviv- ing sous absolutely." But, in case D. should leave no son him surviving, the property was to be held in trust for K. absolutely. ' B. was a stranger in blood to the testator ; ^ D. was the testator's nephew. D. attained twenty-five : — Held, that, having regard to the whole scheme of the will, an absolute gift of the second moiety to D. at twenty-five must be implied. lb. Erroneous Statement — Legatee adducing Evi- dence to contradict Will.] — A testator gave the proceeds of sale of his real and personal estate to trustees, on trust to divide the sapae among his children living at his death; and the issue of deceased children, in equal shares per stirpes. The will stated that the testator bad advanced to four of his sons respectively certain specified amounts, on account of their respective shares, and the testator directed that the " respective sums hereinbefore recited to have been advanced ' ' should be brought into hotchpot by the four sons respectively for the purposes of the division of his estate :^Held, that the sons were b6und by the statement in the will of the amounts of the advances made to them, and were not entitled to adduce evidence to show that the advances which had been made to them were in fact of less amount. Aird's Estate, In re (12 Ch. D. 291) followed. The decision in that case is not overruled by Taylor's Estate, In re (22 Ch. D. 495). Wood, In re, Ward v. Wood, 32 Ch. D. 517 ; 55 L. J., Ch. 720 ; 54 L. T. 932 ; 34 W. B. 788— North, J. Description of Devised lands.]— A testator devised "the townland of T., includmg the house, offices, and demesne, &c., of W. In addition to the demesne of "W., which, m fact, formed part of T., the testator was entitled to adjoining lands, called M. and C. :— Held, that extrinsic evidence that the testator treated M. and C. as part of the demesne of W. was inad- missible for the purpose of showing that M. and C. passed under the devise. King v. Kin^, 13 L. R., Jr. 531— V.-C. "Acres" — Irish or Statute Acres.] — ^A tes- tator, by a will made in 1872, devised " forty- five acres of the lands of D." to A., and " fifty acres" of the same lands to B. : — Held, that extrinsic evidence was not admissible to show that the testator meant Irish and not statute- acres. By the statutory definition contained in the 5 Geo. 4, c. 74, s. 2, the word "acre" haa received a legal signification which must be attributed to that word, whether used in a contract, or in a will, or other voluntary instru- ment. O'Donnell v. O'Donmell, 13 L. E., Ir. 226 — C. A. Secret Trust — Evidence to show Existence of.J —A testator who died in Jan., 1885, by his will da,ted in Dec, 1884, bequeathed to his friends A. and B. the sum of 500Z. free of legacy duty to be raised and be paid out of his pure personalty, " relying, but not by way of trust, upon their- applyiug the said sum in or towards the object or objects privately communicated to them " by him. The executors objected to pay over the bequest, on the ground that there was a secret trust, and that such trust appeared to be an illegal one. The legatee accordingly applied to the court to order payment of the legacy. The executors tendered affidavits to show that the- bequest was upon a trust. The legatees objected that the court could not go beyond the terms of the wiU : — Held, that the evidence was ad- missible. Russell V. Jacltson (10 Hare, 204)' followed. Spencer's Will, In re, 57 L. T. 519— C. A. Latent Ambiguity — Description of Legatee — Parol Evidence.] — A testatrix gave' a share of her residu<> to her " cousin, Harriet Cloak." She had no cousin of that name, but she had a married cousin, Harriet Crane, whose maiden name was Cloak ; and she had a cousin, T. Cloak, whose -wife's name was Harriet: — Held, that extrinsic evidence was admissible to show the testatrix's knowledge of and intimacy with the members of the Cloak- family; Grant V. Grant (5 L. E., C. P. 727) distinguished. ■Taylor, In re, Cloali v. Hammond, 34 Ch. D. 255 ; 56 L. J., Ch. 171 ; 56 L. T. 649 ; 35 W. B. 186— C. A. A testator by his will left to his nephew his (the testator's)' interest in the lands of L., subject to the payment of all charges on the said farm and lands, and, as to the said farm, subject to the payment by him (the testator's nephew) to each of his parents during their respective lives, of the sum of 5Z. per year. At the time of his decease, and at the date of the will, the testator had several nepfaewS) sons lof the tes- 2021 WILL: — Construction. 2022' tator's brothers, who had emigrated to America many years before. He had also a nephew T. D., son of Ms sister M. D. For some years before his death the testator, resided with M. D. and her husband, and T. D. had managed the tes- tator's farm at L. The solicitor who drew the will proved that the testator intended T. D. as the object of his bounty : — Held, that T. D. was entitled to the farm. Phelan v. Slattery, 19 L. E., Ir. 177^V.-C. . A testator, in 1877, le;Et to his trustees a sum of 10,000Z. railway stock, in trust for the " children " living at his decease of his deceased niece " Margaret Kerr." ■ Some years before the date of the will the niece mentioned had married a second time, under circumstances which very much displeased the testator, who had in conse- quence declined to hold any communication with her, and always refused to recognise her by any other surname than that of " Kerr," her first husband's. There were five children of the first marriage, and one; of the second, who survived the testator. Within three weeks after the date Qf the wUl the testator wrote a letter to one of the five children of the first marriage, from which it appeared that he intended to confine the gift of the lO.OOOZ, to them, as he stated therein that he had by his will left them 2,0002. each. He also caused a similar letter to be written and sent about four years later. The testator died in 1883 :-rHeld, that the word " children " must bear its primS, facie meaning, so as to include the children of both marriages, and that, there being no latent ambiguity as to its signification in this instance, the letters were not admissible to show the testator's intention. Andrews v. Andrews, 15 L. E., Ir. 199 — C. A. . Rebutting Fresnmptiou — Gift to Executor.] — Parol evidence is admissible to rebut the pre- sumption that a legacy given to a person who is appointed executor is annexed to the office. Appleton, In re, Barler v. Tebiit, 29 Ch. D. 893 ; 54 L. J., Ch. 954 ;: 52 L. T. 906 ; 49 J. P. 708— Per Cotton, L. J. A testator's vrill contained the following clause : — " I give and bequeath to my brother iE. whatsoever real estate I may die possessed of, wheresoever situate, on^ trust nevertheless to pay thereout thesum of 8002. due from me to the trus- tees under the marriage settlement of S., and the sum of 3Q0Z.. due from me to B., and also on trust to pay to each of my sisters M. and C. and to my brother A., as long as they respectively live, the sum of 50Z. every year." The will con- tained a bequest of the personalty to E. and A. and certain of his sisters, and appointed E. executor thereof :— Held, that as B. was an ejcpress trustee, parol evidence was not ad- njissible.to show that there was an Intention to give him a beneficial interest. Croome v. Croome, 59 L. T. 582— Stirling, J. And see BaeorHs WUl, In re, ante, col. 2017, 3. DEVISEES AND LEGATEES. a. To What Persons. i. CMldren, a. ' Illegitimate Children. Child En ventre samere.]— 7G. B. went through the ceremony gf marriage with J. A. C, whose husband had deserted her and gone abroad many years before and was believed to be dead, but Gr. B. was awai-e that there was no certain infor- mation of his death. Shortly afterwards G. B. made his will, by which he gave "to my dear wife J. A. B., formerly J. A. 0.," an interest in certain chattels during, her widowhood,' and also gave to her the income of his residuary per-, sonalty during widowhood, and after her decease or re-marriage he gave the corpus to "all and every my child and children," as therein men- tioned, and in default of children to his nephews and nieces. G. B. and J. A. C. cohabited for more than a year and a half after the date of the will, when G. B. died, leaving J. A. C. enceinte of her only child. She enjoyed the income of the residue till her death, upon which event the nephews and nieces claimed the property under the gift over, and proved that ij.. A. C.'s child, was illegitimate, her former husband having been alive ^t the time of her marriage to the testator : — Held, that the child could not take. Oceleston V. FuUalove (9 L. Ej, Ch. 147), leaves untouched the rule that there cannot be a valid gift to a future illegitimate child described solely by reference to its paternity. Goodwin's Trust, In re (17 L. R., Eq. 345), observed upon. Bolton, In re. Brown v. Bolton, 31 Ch. D. 542 ; 55 L. J., Ch. 398 ; 54 L. T. 396 ; 34 W. E. 325 ; 50 J. P. 532— C. A. Whether an illegitimate child en ventre, sa mfere at the testator's death, but not en ventre sa m^re when the will was made, can take as the reputed child of the supposed father, quaere. lb. Children to be in esse at Death of Testator.] — H. by his will gave a tmst fund " in trust for my four natural children by M. B. M., viz., J., C., E., and J. H., and all and every other children and child which may be born of the said M. E. M. previous to and of which she may be pregnant at the time of my death, share and share alike." Besides the four children named in the will there were three other children born of M. E; M. after the date of the will and before the death of the testator, all of whom were known by his surname : — Held (1), that upon the construction ,of the will the word '* children " must be taken to include illegitimate children, and was not \50id for uncertainty ; and (2), that being a gift by will to illegitimate children of the testator to be in esse before the death of the testator, it was a good gift within the rule laid down in Oceleston V. FuUalove (9 L. E., Oh. 147), and that the children who came into esse after the date of the will and before the death of the testator were entitled to share in the gift. SasHe's Trusts, In re, 35 Ch. D. 728 ; 56 L. J., Ch. 792 ; 57 L. T. 168 ; 35 W. E. 692-Stirling, J. Gift to "Children"— Gift over.]— A testator by his will, made in 1847, gave to his eldest daughter, naming her, a freehold estate. The testator in the will twice called her his eldest daughter. He disposed of his furniture and continued, "I particularly direct that, should any , of my children die without having any children of their own lawfully begotten, their share, whether land or money, shall be divided equally among my surviving children, and none of the land shall ever be sold." The testator died, on the 14th December, 1854 ; his eldest daughter was illegitimate, and died intestate, 3 T 2 2023 WILL — Construction. 2024 without having had any children. An action was brought for partition of the real estate, and the chief clerk found that the persons entitled to the interest of the eldest daughter in the freehold estate devised to her were the surviving chUdren of the testator. On summons issued by the Attorney-General claiming the estate on behalf of the Crown :— Held, that the rule of law, that where there is a gift to children, an illegitimate child cannot take pari passu with legitimate children in the absence of special directions, does not apply to a gift over ; and that on the death of the eldest daughter, the estate went to the other children of the testator. Smith V. Jobson, 59 L. T. 397— Kay, J. Sufficiency of Description.]— A testator by his will, dated in 1868, directed his trustees to pay the income of a certain share in a trust fund " to my sister Charlotte, the wife of Thomas H.," during her life, and after her death to pay and divide the share unto, between and amongst " all her children " who should be living at her death, and the " representatives " of such of them as should have died in her lifetime who should have attained twenty-one, equally share and share alike. Charlotte never was the wife of Thomas H., he having previously to 1845 married another woman who at the date of the will and down to his death in 1875 was his lawful wife. In 1845 Charlotte left her home, and thenceforth co- habited with Thomas H. until he died. At the date of the will she had had four illegitimate children by him, the two survivors of whom were then living, aged respectively twenty and eighteen ; and she had not had a child for seventeen years, and was presumably past child- bearing. Charlotte died in 1885. These were the only children she ever had, and only one of them survived her. The testator was well aware of the connexion of his sister with Thomas H., visited at the house where they resided, and recognized the children of his sister by Thomas H. as his own nephews and nieces : — Held, that the testator in describing his sister Charlotte as the " wife " of Thomas H., when he knew she was not so, and in using correlatively with that the expression " children " to describe the off- spring of a woman whom he knew not to be lawfully married, had shown that he did not use the term " children " in its strict legal sense ; and that, applying the principles laid down in mil V. Crook (6 L. E., H. L. 265), the illegiti- mate children of Charlotte were intended, and were, entitled to take under the gift in the testator's will. Sill v. Crook (6 L. R., H. L. 265), and Dorin v. JDorin (7 L. E., H. L. 568), explained. Ayles' Triists, Ik re (1 Ch. D. 282), MUs V. Houstonn (10 Ch. D. 236), and Megson v. Hiiidle (15 Ch. D. 198), considered. Horner, In re, Eagleton v. Horner, 37 Ch. D. 695 ; 57 L. J., Ch. 211 ; 58 L. T. 103 ; 36 W. K. 348— Stirling, J. A testator described E. W. and another person (who was a legitimate nephew of the testator) as "my two nephews." He gave his residuary estate upon trust for the " children " of his brothers B. H. and T. H., and of his sister J. W. and of his late sister S. B., in equal shares, with a gift over if any one or more of his " nephews and nieces " should die before him leaving children. E. W. was an illegitimate child of J. W., who had four legitimate children, three sons and one daughter : — Held, that the circumstance that R. W. was described by the testator as " nephew " was not suiBcieut to entitle him to share under the gift to the children of J. W. Hall, In re, Branston v. Weightman, 35 Ch. D. 551 ; 56 L. J., Ch. 780 ; 57 L. T. 42 ; 35 W. B. 797— Kay, J. A testatrix bequeathed to A., " the eldest daughter of my deceased daughter, S., my gold watch." And she bequeathed other property to trustees " in trust for such of the children of my said deceased daughter, S., who shall attain twenty-one, absolutely, equally share and share alike, the shares of such of them as shall be daughters to be for their sole and separate use." S. had two legitimate children, a son and a daughter, and she had also an illegitimate daughter, who was the person spoken of in the will as " A., the eldest daughter of S." : — Held, that there was a suificient indication of an in- tention that A. should be included in the descrip- tion of " the children of S." Humphries, In re, Smith V. Millidge, 24 Ch. D. 691 ; 49 L. T. 594 —North, J. Testator by his will bequeathed to M. B. B., " daughter of my nephew, J. B.," 200Z. ; and to T. B., " son of the said J. B.," lOOZ. He directed his trustees to stand possessed of his residue upon trust for " all and every the children and child "of B- C. and J. B. respectively. By a codicil testator revoked the bequest of 200Z. " to my great-niece " M. B. B., and the bequest of lOOZ. " to my great-nephew," T. B., and instead thereof bequeathed to M. B. B. 100?. ; to T. B. lOOZ. ; and to A. B., " another daughter of my nephew J. B.," lOOZ. M. B. B. was illegitimate ; T. B. and A. B, were legitimate : — Held, that M. B. B. was sufficiently indicated as one of the persons who was to participate in the residue. Megson v. Hindle (15 Ch. D. 198) distinguished. Bryon, In re, Brtimmond v. Leigh, 30 Ch. D. 110 ; 55 L. J., Ch. 30— V.-C. B. Illegitimate Children only in Exist- ence.] — The testator, in 1860, was seized with paralysis at the house of his sister-in-law, M. A. L., and her husband, and remained there till his death. M. A. L. had been married seven years, and had by her husband three children, aged sixteen, thirteen, and eleven, born before her marriage with him, but treated as legitimate. The testator was intimate with them. Being worse, he was advised by his medical attendant to make his will, and made one dated the 7th of October, 1860, containing the following disposi- tions : — " I give and bequeath the following legacies to the following persons (that is to say)," after which followed gifts of legacies to persons named, " and to each of the children of M. A. L. the sum of 51. for mourning, the same to be paid> into the hands and on the receipt of the said M. A. L., their mother, for them, not- withstanding their coverture and their mino- rity." On the 5th of August, 1861, he made a codicil, by which he bequeathed iOOl., on the death of an annuitant, " unto and equally be- tween all the children who shall be then living of M. A. L., share and share aMke," and con- firmed his will except as varied by the codicil. He died two days afterwards. M. A. L., who was aged forty-four when the will was made, never had any legitimate child. On the death of the annuitant in 1884 the three children claimed the 4002., and the executors, one of whom was the residuary legatee, took out an originating 2025 WILL — Construction. 2026 summons to have the point decided. It was held that the children were not entitled, but gave the costs of all parties out of the iOOl. The children appealed : — Held, by Cotton, L.J., that the ap- pellants were not entitled, for that no repug- nancy or inconsistency in the will would result from giving to the word " children " its proper sense of legitimate chUdren ; that the thjee children, therefore, were not entitled to the 51. legacies, and whether, if they had been so en- titled, the word " children " in the distinct gift in the codicil ought to be construed in the same way as in the will, quasre. But held, by Bowen and Fry, L.JJ., that there was enough in the will, as explained by the surrounding circum- stances, to show that the testator used the word " children " in a sense which would apply (whether exclusively or not) to the existing children, and that the word must have a similar interpretation in the codicil, and that the appel- lants, therefore, were entitled to the iOOl. : — Held, that the costs of the proceedings must be borne by the residuary estate. Saseldine, In re, Orangey. Sturdy, 31 Ch. D. 511 ; 54 L. T. 322 ; 34 W. K. 327 ; 50 J. P. 390— C. A. i8. In Ordinary Cases. Whether including Grandchildren.] — It is a rule that in a will the word " children " must be construed in its literal sense, unless from the will itself and the context it appears that the word is intended to have a wider meaning ; and for this purpose it is not right to take into consideration outside circumstances. A testator left residue to trustees upon trust to divide it into four parts, and pay one part " to the children of his late brother W. equally ; " the other part " to the children of his late brother J. equally ; " the other part "to the daughters of his late brother A. equally ; " and the remaining part to a certain nephew. J. had had three children and no more, all of whom were dead at the date of the will. The testator knew this. J. left, however, both grandchildren, and great-grandchildren who sur- vived the testator : — Held, on the above principle, that there was an intestacy as to the share given to J. 's " children,"there being nothing in the context or within the four comers of the will to justify the meaning being extended ; it being clear, on the contrary, that the word "children" was used in its literal sense in the gift to W.'s children. Kirh, In re, Nicholson v. Kirli, 52 L. T. 346— Pearson, J. A testator gave his residuary real and personal estate to trustees in trust for sale, and to divide the proceeds into six shares, and to pay one of such shares to the " children " of his deceased sister ; and he gave the other five-sixths in similar terms to the " children " of five deceased persons. At the date of the will there were no children of the sister living, but there were two grandchildren, and these facts were well known to the testator. Both the grandchildren survived the testator : — Held, that the two grandchildren took the one-sixth given to the " children " of the deceased sister. RedoUffe v. BucUey (10 Ves. 195) distinguished. Smith, In re, Lord v. Hayward, 35 Ch. D. 558 ; 56 L. J., Ch. 771 ; 56 L. T. 878 ; 35 W. E. 663— Kay, J. Issue by Two Marriages.] — A testator, in 1877, left to his trustees a sum of 10,0002. rail- way stock, in trust for the " children " living at his decease of his deceased niece " Margaret Kerr." Some years before the date of the will the niece mentioned had married a second time, under circumstances which very much displeased the testator, who had in consequence declined to hold any communication with her, and always refused to recognise her by any other surname than that of " Kerr," her first husband's. There were five children of the first marriage, and one of the second, who survived the testator. Within three weeks after the date of the will the testator wrote a letter to one of the five chil- dren of the first marriage, from which it ap- peared that he intended to confine the gift of the 10,OOOZ. to them, as he stated therein that he had by his will left them 2,00OZ. each. He also caused a similar letter to be written and sent about four years later. The testator died in 1883:— Held, that the word "children" must bear its primEl facie meaning, so as to include the children of both marriages, and that there was no latent ambiguity as to its signification. Andrews'^. Andrews, 15 L. E., It. 199 — C. A. C. for Life, and then amongst such Children as he should Appoint — Default of Appointment.] — Leaseholds were assigned to trustees upon trust, after the decease of the survivor of A., and B., his wife, to assign the same unto and amongst such of the children of the said A., and B. his wife, then living, in such manner, shares, times, and proportions as the said A., and B. his wife, jointly, or the survivor of them separately, should by any writing appoint, and in case there should be no such child or children, then upon trust for C. for life, and after his decease upon trust to assign the same unto and amongst such of- his children, and in such manner, shares, times, and proportions, as he should by any writing appoint. A. and B. died without issue, B. in 1876, A. in March, 1880. C. died in 1863, having had ten children, of whom some prede- ceased him, and some died between his death and the death of A., and the rest survived A. : — Held, that all the children of C. took, as tenants in common, in equal shares. Wilson v. Buguid, 24 Ch. D. 244 ; 53 L. J., Ch. 52 ; 49 L. T. 124 ; 31 W. E. 945— Chitty, J. A power given by will to a tenant for life to appoint to his children, with an express limita- tion over " in default of such appointment," cannot be construed as conferring upon the children any estate or interest in default of the exercise of the power of appointment, at least in the absence of provisions extending the operation of the power. Jefferys' Trusts, In re (14 L. E., Eq. 136), dissented from as to this point, by Lord Esher, M.E. Bradley v. Cartwright (2 L. E., C. P. 511) explained and distinguished, by Cotton, L.J. Richardson v. Harrison, 16 Q. B, D. 85 ; 55 L. J., Q. B. 58 ; 54 L. T. 456— C. A. Gift per Stirpes or per Capita.] — A testator gave some houses to trustees upon trust to receive the rents and to pay the same in equal moieties to his son and daughter during their lives, and after the death of either of them without issue living, upon trust to pay the whole thereof to the survivor during the life of such survivor ; but if there should be issue living of the first of them so dying, then upon trust to pay one moiety to the survivor and to divide the remaining moiety between the children of the one so first 2027 WILL — Construction. 2028 dying ; and after the decease of the survivor of the testator's children, on trust to sell the pro- perty and to divide the proceeds equally amongst all and every the child or children of each of them the testator's son and daughter who should attain twenty-one in equal shares and propor- tions : — Held, that the proceeds of sale were divisible among the grandchildren per stirpes and not per capita. CampieU'a Trusts, In re, 33 Ch. D. 98 ; 55 L. J., Ch. 911 ; 55 L. T. 463 ; 34 W. E. 629— C. A. "According to the Stocks."] — A testator gave the income of a trust fund to his wife for her life, and subject thereto the fund was to be held in trust for such of his cousins (the children of four deceased aunts and two deceased uncles of the testator named in the will) living at the determination of the wife's life interest, and such issue then living (if any) of his said cousins then dead as, either before or after the determi- nation of such life interest, should attain twenty- one, or should die under twenty-one leaving issue living at his, her, or their death, to take (if more "than one) in a course of distribution according to the stocks, and not according to the number of individuals. At the time of the death of the tenant for life, there were living one cousin of the testator (a child of one of the uncles named in the will) and children and other issue of fifteen deceased cousins (children of the other uncle and of the four aunts named in the will) : — Held, that the words, " according to the stocks," applied to the descendants of cousins, and not to the cousins themselves, and that the fund was divisible into sixteen shares. MoHn- ion V. Shepherd (4 D., J. & S. 129) preferred td Gibson v. Fisher (5 L. E.. Eq. 1). Wilson, In re, Parker v. Winder, 24 Ch. D. 664 ; 53 L. J.. Ch. 130— North, J. ii. Survivors. Indefinite Gift of Income.] — A will contained this clause : " With regard to the residue of my estate my executors shall pay the interest in equal parts half-yearly to my sons F., B. and A., the share of a predecessor to be equally divided to the survivors or survivor." A. alone survived the testator : — Held, that A. was entitled to the capital of the residue. Tandy, In re, Tandy v. ~ >, 34 W. E. 748— C. A. Bequest to IiOgatees for Life, azid on Death of any without Child, Legacy to be divided amongst Survivors.] — A testator gave legacies to four named persons for their respective lives, and continued, " the interest on all these legacies is to be paid regularly to. the respective parties as :it becomes due ; and in the event of either of the parties dying, and without child or children, then the legacy of the deceased is to be at once • divided amongst the survivors." The will con- tained a residuary gift. The last survivor of the four named persons having died without children: — Held, that his legacy fell into the residue. Nemll V. Boddam (28 Beav. 554), and Cobietfs Trusts, In re (Johns.. 391), followed. Maden v. Taylor (45 L. J., Ch. 569) and Davidson v. Kimpton (18 Ch. D. 213) considered. Mortiner, In re, Griffitlis v. Mortimer, 54 L. J., Ch. 414 ; 52 L. T. 383 ; 33 W. E. 441--Kayj J. A testator devised to each of ' his children an estate for the life of that child, with remainder to the children of that child, and in case any or either of the testator's children should die with- out leaving any child or children, him, her, or them surviving, then the testator devised the estates to which their child or children respec- tively would have been entitled under his will, if Uving, to his, the testator's, surviving children for their respective natural lives, and after their deceases respectively he gave their respective shares to their respective children, their heirs, executors, administrators, and assigns. There was no gift over on the death of all the testator's children without leaving children. C, one of the testator's children, died without leaving issue. Some of the other children were then living; others had died leaving children of theirs then living :— Held, that the word " surviving " was to be read in its proper sense, and that the children of those children of the testator who had predeceased C. took no interest in the estate of which C. was tenant for life. Benn, In re, Benn v. Benn, 29 Ch. D. 839 ; 53 L. T. 240 ; 34 W. R. 6— C. A. The fact that the original shares are all settled by the will, and that the shares which the " sur- vivors " take in the share of a child who dies without issue are settled in the same way as their original shares, is not by itself sufficient to show that " survivors " is used otherwise than in its proper sense. lb. Cross-remainders — Estates tail.] — A testatrix devised her real estate, after the death of her daughter, as to one fourth part thereof, to the use of Thomas (a son of the daughter) for his life ; with remainder to the use of his children as tenants in common in tail ; with cross-remainders in tail. The testatrix devised the other three-fourths of her real estate upon similar limitations in favour of the three other children of the daughters and their issue. By a codicil she directed that, in case any of her grandchildren named in her will should . die without leaving any child or children, then the share or shares of them, him, or her so dying in the hereditaments devised by her will should go to and devolve on the " survivor or survivors " of her grandchildren, and the heirs of his, her, or their respective bodies. One grandchild died a spinster. Then two of the grandchildren died leaving children. Thomas was the last survivor, and he died without having had a child : — Held, that Thomas could not take his own share as " survivor," that cross-remainders were to be implied between the four grandchildren, or else the words "survivor or survivors " were to be construed "other or others," and that conse- quently Thomas's shares devolved, on his death without having had a chUd, upon the two grand- children (who left children) equally as tenants in common in tail. Askew v. Askew, 57 L. J., Ch. 629 ; 58 L. T. 472 ; 36 W. E. 620— North, J. To what Event Referable.] — A testator byiis will gave all his real and personal estate remain- ing after payment of debts, &c., to J. S. for life, and at her decease he gave the same to M. A. and W. A. " if they are both living at the time of her decease, and in case of the death of either of them before J. S.," he gave " the whole to the survivor of them for their own use and benefit absolutely." The testator died seised of •2029 WILL — Construction- 2030 real estate ; after the testator's death W. A. died, then M. A,, and J. S. last of all : — Held, that upon the true construction of the will the word " survivor " in the ultimate gift meant the sur- "vivor of M. A. and W. A. living at the death of J. S. the tenant for life ; that since M. A., though she survived W. A., had pre-deceased J. S., she had not come within the terms of the ultimate gift, and that upon the death of J. S., there was an intestacy as to the property given by the will, and the real property consequently passed to his heir-at-law. Sill to Cliapman, In re, hi L. j], Ch. 595 ; 52 L. T. 290 ; 33 W. K. 570— •CA. A testator devised copyholds; subject to life interests, to his cousins A. and B., their heirs and ^assigns, as tenants in common ; but if either should die in the lifetime of the tenants for life, and without having lawful issue then living, he •devised her share to the survivor of them, her heirs and assigns. A. died, leaving issue ; then B. died without issue ; afterwards the tenant for life died : — Held, that B.'s share went to A.'s representative, though A. did not survive B. ■JbJmstm, In re, Hichman v. Williamson, 58 L. J., Ch. 1116— V.-C. B. After two successive life estates, a testator •devised freehold houses (which were sub-demised) to " J. S., and W. S., or the survivor of them. The N. Street front to go to J. S., the H. Street front "to W. S., and an equal portion of the back- ■ground to go to each tenement after the lapse of the present lease, whatever time the holding becomes the property of J. S., and W. S. ; provided the lease now in existence has not terminated ; the rent to be divided equally between them, ■after paying the chief rent, until the fall of said lease : " — ^Held, that the survivorship was to be referred to the determination of the tenancies for life, and therefore, J. S., who had then sur- vived W. S., was entitled to thehouses. Belfast Town Council, In re. Savers, Esc parte, 18 L. E., It. 169— M. E. Tounger Childreu — ^After-bom Child.] — A tes- tator by his will directed that his four children should be made wards of court, and, having made provisions for maintenance, and bequeathed pecu- niary legacies to his younger children, appointed his eldest son, W., residuary legatee and devisee, and directed as follows : — " In case of any of the younger children dying before they attain the age of twenty-one years or leaving legitimate issue, I direct their portion or portions to be divided among the survivors, share and share alike ; and failing all my own children, 1 devise the whole of my property to the children of my sister," &c. The testator left four children, all minors, him surviving ; namely, W., his eldest son, and J., E. and H. At the time of the death of the testator, his widow was enceinte of a <;hild, C, who was born after the testator's death. E., one of the children, having died under twenty-one and unmarried :— -Held, that W., the eldest son, and C. the posthumous child, were not entitled, upon the construction of the will, to any share of the legacy be- queathed to E. Wallis V. WalUs, 13 L. E., Ir. 258— V.-C. iii. Ezecutors. Gift to A., and on his death to his Execntors.] — A gift in a will to A., and in case of his death to his executors or administrators, passes to the legatee's personal representative as part of his personal estate. Palin v. Sills (1 Myl. & K. 470) overruled. Clay, In re. Clay v. Clay, 54 L. J., Ch. 648 ; 52 L. T. 641— C. A. Affirming 32 W. E. 516— Chitty, J. Besidnary Gift by one of Legatees to Testator.] — A testator made a general bequest to two persons, and ia case of their decease to their executors and administrators. :Both the legatees died in the testator's lifetime, one of them having bequeathed to the testator the residue of her property, which included the share of the testator's property which passed to her representative : — Held, that this share was not to be treated as forming part of the testator's estate, and so distributed again under his will, but went to his next-of-kin as undisposed of. Valdez' 'Drmts, In re, 40 Ch. D. 159 ; 60 L. T. 42 ; 87 W. E. 162— Kay, J. Gift annexed to Office— Behnttal of Presump- tion.] — The mere fact that the gift of the legacy precedes the appointment of the legatee as executor — or that the legacies to several persons appointed executors differ either in. their amount or subject-matter — is not enough by itself to rebut the presumption, that a legacy given to a person who is appointed executor is annexed to the office. Jer-ois v. Lawrenee (8 L. E., Bq. 345), questioned. Wildes v. Bavies (1 Sm. & Giff. 475) explained. Applctim, In re, Barler v. Teiiit, 29 Ch. D. 893 ; 54 L. J., Ch. 954 ; 52 L. T. 906 ; 49 J. P. 708— C. A. A testator bequeathed the lands of K. (build- ing ground) to his son F. J. N., whom he ap- pointed executor. He directed the land to be built on according to certain plans, with power to F. J. N. to alter them, and power to make building leases. He appropriated the rents of the lettings for building and of other property for carrying out his general trust, which he did not clearly define, and gave his executors duties to perform of a continuing character, to keep the furniture and the house in which he had resided for his daughters and sisters-in-law, and supply the latter with clothes and pocket-money ; and to continue to carry on a, certain business in which he had himself been engaged, &c.: — Held, that the lands of K. were bequeathed to F. J. N. as executor, and not beneficially. Nugent v. Nugent, 15 L. E., Ir. 321 — M.E. See also Bacon's Will, In re, ante, col. 2017, and Croome V. Croome, ante, col. 2021. iv. Next of Kin. "Next Male Kin."]— C. devised the rents of certain real estate to his wife for life, and after her death in certain proportions to H. and G. during their lives, and in the event of either dying, the deceased's share to revert to the next male kin : — Held, that next male kin must be taken to mean those of the testator's next of kin at his death who wdre males. Chapman, In re, MUoh V. Com, 49 L. T. 078 ; 32 W. E. 424— Korth, J. Next of Kin of Wife— Time for ascertaining.] — A testator by his will directed that the shares of his daughters in his residuary estate should be settled, the ultimate limitation, in case a daughter should not leave any child or children 2031 WILL — Construction . 2032 who should be living at the decease of the sur- vivor of herself and her husband, being in trust for the person or persons who, under the Statutes of Distribution, "would on her decease have been entitled thereto in case she having survived her husband and had then died possessed thereof and intestate." A daughter having died without issue, leaving her husband surviving : — Held, that her next of kin to take under the ultimate hmitation were to be ascertained at the time of her own death, and not at the time of the death of her husband. Chalmers v. Nortli (28 Beav. 175) disapproved. Druitt v. Seaward, 31 Ch. D. 234 ; 55 L. J., Ch. 239 ; 53 L. T. 954 ; 34 W. E. 180 — Pearson, J. V. Kepreseutatives. Gift to Legatees or their respective "legal Personal Representatives."] — -A testatrix, who died in 1885, by her will dated in 1884, after bequeathing certain specific legacies, gave all her real and residuary personal estate to her trustees upon trust to convert and to stand possessed of the proceeds to pay the legacies oUowing, which she thereby bequeathed to the persons tliereinafter mentioned " or to their re- spective legal personal representativ'es." Then followed numerous legacies. The testatrix dis- posed of the residue of her property by giving it to each of several persons named " or the legal personal representatives" of such of them re- spectively as might then be dead or should die in her lifetime. In the commencement of the will the testatrix had made a specific bequest of certain portraits to a legatee there named, " or to his executors or administrators." One of the pecuniary legatees having died in the lifetime of the testatrix, the question was who was entitled to his legacy under the words "legal personal representatives": — Held, that the prim^ facie meaning of "legal personal representatives" was executors or administrators ; but that there was reason here for departing from the prima facie meaning of the words, because the testatrix had, in one instance, used the words executors or administrators in a similar alternate gift, and it was legitimate to infer a change of meaning where different words were used : — Held, there- fore, that the legacy belonged to the next of kin of the deceased legatee ; and that such next of kin were to be those who would have been next of kin, according to the Statutes of Distribution, if the legatee had died at the time of the death of the testatrix. Thompson, In re, Machell v. Newman, 55 L. T. 85 — Kay, J. Gift to " Personal Representatives ' ' of Children "per stirpes."] — A testatrix, who died in 1827, by her will, dated in 1815, devised to her trustees therein named certain freehold hereditaments upon trust to apply the rents and profits thereof, in the first place, towards the discharge of certain debts and her funeral and testamentary expenses, and then to pay, apply, appropriate, and divide all and every such rents and profits unto and for the equal benefit and advantage of all her chil- dren and their respective families from time to time so long as any of her children should live ; and from and after the death of the youngest liver of her children, upon further trusts, and she did thereby order and direct the heirs of her surviving trustee to sell and absolutely dispose of all her said real estate, and the moneys arising from such sale or sales to pay and divide unto and equally amongst all and every the "personal representatives" of her several children per stirpes :— Held, that the words "personal representatives" here meant the descendants of the testatrix's children ; and that the issue living at the testatrix's death, and born before the death of the last surviving child of the testatrix, were entitled to share per stirpes. Knowles, In re, Bainford v. Rnowles, 59 L. T. 359— Kay, J. "Representatives" of Children.]— A testator by his will, dated in 1868, directed his trustees to pay the income of a certain share io a trust fund " to my sister Charlotte, the wife of Thomas H." during her life, and after her death to pay and divide the share unto, between and amongst " all her children " who should be living at her death, and the "representatives" of such of them as should have died in her lifetime who should have attained twenty-one, equally share and share alike : — Held, that the word "repre- sentatives" in the gift must be construed either as " next of kin " or as " descendants," and not as " executors or administrators." Horner, In- re, Eaqleton v. Horner, 37 Ch. D. 695 ; 57 L. J., Ch. 211 ; 58 L. T. 103 ; 36 W. E. 348— Stirling, J. ■vi. "Wife. Divorce.] — A testator left shares in his resi- duary estate in trust for his sons for life, and from and after the decease of each son, in trust to permit any wife of such son to receive the- income of his share during her life. One of the- sons married, was divorced from his wife and died : — Held, that the divorced wife was not entitled to the life interest in his share. Bull- more V. Wynter (22 Ch. D. 619) disapproved. Hitchins v. Morrieson, 40 Ch. D. 30 ; 58 L. J.^ Ch. 80 ; 59 L. T. 847 ; 87 W. E. 91— Kay, J. " My Wife" — Former Wife alive.] — A testator bequeathed the residue of his property to "my wife." He had separated from his wife by mutual consent, and in her lifetime went through the ceremony of marriage with another woman whom he always treated as his wife : — Held, that the second " wife " took under the words " my wife." Hoioe, In goods of, 33 W. E. 48 ; 48 J. P> 743— Butt, J. " So long as she shall continue my Widow anii Unmarried"— Nullity,]— A testator, after giving- a legacy of 200Z. to his wife, directed his trustees "in addition thereto to pay to my said wife, so long- as she shall continue my widow and unmarried, an annuity of 300Z., or otherwise in lieu and in substitution of the said annuity, at the option of my said wife, if she shall prefer it, a legacy of 2,0002." After the date of the will the marriage ■was declared null by the Divorce Court in a suit brought by the wife against the testator. After this the testator died leaving the lady surviving. Fry, J., held that she was entitled to the legacy of 2001., but she was not entitled either to the- annuity or the 2,O0OZ. She appealed from this- decision so far as it was unfavourable to her : — Held, that although if the lady had been the testator's wife at his decease the words "shall continue my widow and unmarried," might have been in substance the same as " shall continue 2033 WILL — Construction. 2034 unmarried," the reference to widowhood could not on that ground be treated as surplusage, but was the principal part of the condition, and that, as the lady did not at the testator's death fill the position of the testator's widow, she could not take the annuity. Held, further, that she could not take the 2,00OZ., for that an option to take a legacy instead of an annuity could not exist if there was no right to take the annuity ; and, moreover, that a gift by way of substitution for another is subject to the same conditions as the original gift. Rishton v. Cohb (5 My. & Or. 145) doubted. Boddington, In re, JBoddiiigton v. Clairat, 25 Ch. D. 685 ; 53 L. J., Ch. 475 ; 50 L. T. 761 ; 32 W. E. 448—0. A. vii. Cousins. Who answer Description.] — ^A testatrix gave a share of her residue to her "cousin, Harriet Cloak." She had no cousin of that name, but she had a cousin, T. Cloak, whose wife's name was Harriet : — Held (Bowen, L. J., dissenting), that " cousin " might be understood in a popular sense as the wife of a cousin ; and that Harriet, the wife of T. Cloak, was entitled to the share of the residue. Taylor, In re, Cloak v. Hammond, 34 Ch. D. 255 ; 56 L. J., Ch. 171 ; 56 L. T. 648 : 35 W. E. 186— C. A. A testator gave the residue of the proceeds of the sale of his real and personal estate equally between all such of his first and second cousins, including his "reputed cousin " A. B., and his children, or reputed children, and the children of his "reputed cousin " S. G. as should be living at the time of the determination of two life interests given by the will, and directed that if the said A. B. should be then dead, the share to which he would have been entitled if then living should be divided amongst his then surviving children. By a codicil he gave a legacy "to each of my cousins" J. B. and G. C, in addition to any sum to which they might be entitled under his will. The testator had no second cousins either at the date of his vrill or his death. He had at his death first cousins, first cousins once removed, and first cousins twice removed. A. B. and S. G. would, if legitimate, have been his first cousins. J. B. and G. C. were his first cousins once removed : — Held, that the persons to take were the testator's first cousins, and first cousins once removed. Wilhs v. Banrdster, 80 Ch. D. 512 ; 54 L. J., Ch. 1139 ; 53 L. T. 247 ; 33 W. E. 922 —Kay, J. viii. Heirs. Gift of Beal and Personal Estate together. J — A testator gave, devised and bequeathed to his wife all his property, real or personal, on trust for herself for her life, and after her death the whole of his property was to be equally divided among all his children, " or such of them as may be then surviving, or their heirs." The testator had five children, all of whom survived him. Of these children two daughters died before the wife, leaving children : — Held, that the word " heirs " had a twofold meaning, viz. : heir-at-law as regarded the real estate, and next of kin as regarded the personalty. Held, also, that the property was divisible in fifths — each surviving child of the testator taking one-fifth. and the heir-at-law and next of kin of each deceased daughter taking between them (ac- cording to the nature of the estate) one-fifth share. Wingfield v. WingfieU (9 Ch. D. 658) followed. Smith v. Butcher (10 Ch. D. 113) distinguished. Keay v. Boulton, 25 Ch. D. 212 ; 64 L. J., Ch. 48 ; 49 L. T. 681 ; 82 W. E. 591— Pearson, J. Personalty — life Estate.] — Testator be- queathed his residuary estate to his wife for life, his will continuing as follows : " And after the death of my said wife, I give unto my sister M. H., the wife of J. H., the sum of 1,000J. sterling, the same to become the property, at her death, of her heirs." J. H. survived M. H. (who died without issue), and by his will bequeathed the 1,0002. given to M. H. to X. and Z. on the subsequent death of the testator's widow: — Held, that the l,O0OZ. bequeathed to M. H. belonged to J. F., who was her heiress and next of kin, and not to X. and Z. Bussell, In re, 52 L. T. 559— C. A. Eeversing 58 L. J., Ch. 400— Kay, J. iz. In Other Cases. "Other Sons"— "To be Begotten"— Eldest Son excluded.] — Testator devised his mansion- house successively to his second and third sons, F. L. and J. L., for life, with remainder to their sous in tail male, and then to the use of his fourth, fifth, and all and every other the son and sons of his body on the body of his wife to be begotten, born, or en ventre sa m^re at the time of his decease, severally, successively, and in remainder one after another in seniority of age and priority of birth, and of the several and respective heirs male of the body and bodies of all and every such son and sons lawfully issuing, the elder of such son and sons and the heirs male of his body to be aJways preferred, and to take before the younger of such son and sons and the heirs male of his and their body and bodies issuing, and for default of such issue to the use of the testator's daughters, begotten or to be begotten, as tenants in common in tail. The will also provided for portions for the testator's children other than his three eldest sons, "who are otherwise provided for." The will contained no provision for the eldest son, but he was entitled to other family estates in remainder upon the death of the testator. The testator died leaving three sons and five daughters, all of whom were in esse at the date of the will. The limitations to the second and third sons and their issue having failed, the eldest son claimed an estate tail under the devise to the fourth, fifth, and other sons : — Held, that he was not entitled. Loclte v. Bunlop, 39 Ch. D. 887 ; 57 L. J., Ch. 1010 ; 59 L. T. 683—0. A. Affirming 36 W. E. 41— Stirling, J. "Belations hereafter named " —Names omit- ted.] — A testator by his will, dated in 1861, devised and bequeathed all his property to his wife for life, and after her death he directed it to be divided amongst his "relations hereafter named." No relations were named in the will, and the testator's heir-at-law claimed on the ground that there was an intestacy : — Held, that the word " named " must be taken in its plain sense, indicating an intention to specify certain relations ; and that as the testator had not done 2035 WILL — Construction. 2036 so there wa^ an intestacy, and the heir-at-law was entitled to the real estate. Crampton v. Wise, 58 L. T. 718— Chitty, J. " Unmarried."] — Although the word " unmar- ried " is one of flexible meaning, and may mean either " never having been married," or " not taving a husband" at the time when a gift is to take effect, the former is the primary or natural meaning, and, in the absence of any context showing a different intention, the word will be ao construed. Sergeant, In re, Mertens v. Walley, 26 Ch. D. 575 ; 5i L. J., Ch. 159 ; 32 W. E.' 987 — Pearson, J. "Sole and Unmarried" — Divorce.] — A testa- trix, by her will made in 1860, bequeathed a fund to trustees, on trust to pay the income to her husband for his life, and on his death to divide, the fund into four equal parts, and, as to one of the parts, " upon trust to pay the same to J. H.', ■spinster, if she be then sole and unmarried, but, if she be then married," the testatrix directed her trustees to pay the income of the fourth part to J. H. for her life, for her separate use, and after her death to hold it on trust for her children. In June, 1878, the testatrix died, and her husband died in April, 1883. In April, 1861, J. H. married, and in November, 1878, a decree abso- lute was made for the dissolution of her marriage. There were three children of the marriage. J. H. did not marry again : — Held, that the words " then sole and unmarried " meant " not having a husband " at the time of the death of the tenant for life, and that in the events which had happened, J. H. was absolutely entitled to the one-fourth share. Zesingham's Trusts, In re, 24 Ch. D. 703 ; 53 L. J., Ch. 333 ; 49 L. T. 235 ; 32 W. E. 116— North, J. " Bied Intestate without having ever been Married."] — A testator, by his will dated in 1883, after disposing of a sum of 20,00OZ. in favour of his son and others, made an ultimate gift of that sum to the persons who would be the next of kin of his (the testator's) late mother if she had " died intestate without having ever been married." The trustees of the will paid the 20,000?. into court under the Trustee Eelief Acts. In the events which happened the whole ■of the fund was claimed by the first cousin once removed of the testator's mother. She had died, leaving one lineal descendant only, who opposed the claims of her first cousins once removed : — Held, that the words " died intestate without ever having been married " were clear and un- ambiguous ; and that efEect must be given to them by directing that the lineal descendant of the testator's late mother was, by the terms of the bequest, excluded in favour of her collateral next of kin. Watson^ Trusts, In re, 55 L. T. 316— Chitty, J. Testator's " Family."] — A testator by his will appointed two trustees, and directed that all moneys due to him should be collected and placed to his trustees' account at a certain bank, in trust for his "family" : — Held, that there was nothing in the context of the will to deprive the word "family" of its primary meaning, i.e., children of the testator ; and that, therefore, .«uch children alone were entitled to share in the money in the bank. Muffett, In re, Jones v. Mason, 55 L. T. 671— Chitty, J. " Household Servants " confined to Domestic Servants.] — A testator gave to each of his " household servants " who should have been in bis service for one year previously to his death six months' wages, free of legacy duty in ad- dition to the ordinary wages that might be due to him or her respectively. The servants who had been in the testator's service the requisite time, in addition to the maid servants resident in the house, were a coachman who lived in a cottage adjoining the pleasure grounds, a groom who occupied a room over stables in the park and close to the house, and another groom who also occupied a room over the stables : — Held, that household servants had the same meaning as domestic servants, and that the coachman and grooms were not entitled to the gift. Ogle v. Morgan (1 D. M. & G. 359) followed. Sraic, In re, Havile v. Teatman, 57 L. T. 475 — Kay, J. " To Servants in my Service and to my Gardener."] — A testator, who died in 1883, by his will, dated in 1876, gave legacies to his servants, in the following terms : " To each of my servants, who shall at my death have been in my service twelve calendar months, or longer, one year's wages, in addition to any- thing owing by me, and to my gardener, Peter Grieve, 300?. in addition." In 1 880 Peter Grieve, who had been in the testator's service for over thirty years, relinquished his situation, and when he did so the testator sent him 100?. The ques- tion was whether Peter Grieve was entitled to the legacy of 300?. : — Held, that the words " and to my gardener," &c., were governed by the condition that the servant should have been in the testator's service during twelve months pre- ceding the testator's death, and as Peter Grieve had not fulfilled that condition he was not entitled to the Ifegacy. Benyon, In re, jBenyon V. Griere, 53 L. J., Ch. 1165; 51 L. T. 116; 32 W. E. 871— Kay, J. " Office and Warehouse Employes."] — Testator, by his will, bequeathed as follows : " My office and warehouse employes, such as clerks and workmen, shall have to receive six months' full salary " : — Held, that the persons to take were the employfe in the service of the testator at the time of his death. Marcus, In re, Marcus V. Marcus, 56 L. J., Ch. 830 ; 57 L. T. 399— North, J. Gift to a Peer.] — A testator bequeathed a silver cup to Lord S. and his heirs for an heir- loom. The person who was Lord S. at the date of the will died before the testator leaving a successor to the title : — Held, that the bequest lapsed. Whorwood, In re. Ogle v. Sherborne iLord^, 34 Ch. D. 446 ; 56 L. J., Ch. 340 ; 56 L. T. 71 ; 35 W. E. 342— C. A. Person entitled to Possession of M, House.] — Testator bequeathed a collection of books, manu- scripts and pictures to his executors to hold as heirlooms, and suffer the same to be used and enjoyed by the person who for the time being under the limitations of "a certain deed of entail bearing date day of shall be entitled to the possession of" M. House. At the testator's death there was no such deed of entail as described in the will in existence, and the testator was entitled to the house absolutely in fee simple : — Held, that the collection be- 2037 WILL — Construction. 2038 longed to the heir-at-law of the testator, as the person entitled in possession to M. House. JBute (Marquii), In re, Side (Marquis) v. Ryder, 27 Ch. D. 196 i 53 L. J., Ch. 1090 ; 32 W. E. 996— V.-C. B. Bequests to Charities.] — See Chaeity. Attesting Witness.] — See ante, col. 2003. Solicitor — Siiection to charge for work done.] —See 'ante, col. 2002. J. Gift to a Class. Artificial Class — £zclasiou of Named Per- sons.] — Certain property was bequeathed by will to be held by trustees, in events which hap- pened, " in trust for such person or persons as under the statutes for the distribution of the -estates of intestates shall, exclusive of my said daughter C. L., and of my said grandchild C. Gr. and her issue (if any), then be my next of kin ; ■ such persons, if more than one, to take in equal shares as tenants in common." When the events happened, there were living the above-named daughter and grandchild, and a sister of the testator, and two nephews, sons of his deceased brother : — Held, that the effect of the will was to exclude the daughter and grandchild, and that the sister and nephews took in ' equal shares per capita. Taylor, In re, Taylor v. Ley, 52 L. T. -839— C. A. Bequest to such Children as attain Twenty- one.] — ^Bequest of residue "in trust for my son GeorgCrmy daughters Lydia, Mary Ann, Alice, and Frances, and such of my child or children, if any, hereafter to be bom, as shall attain the age; of twenty-one years or marry, in equal shares as tenants in common, but subject, as to the share of any daughter, whether now living, • or a child hereafter to be born, to the trusts ■ following ;" the share of "such daughter" being settled. The testator had six children only, the five named and one other, all of whom had at- tained twenty-one at the date of the will. Of the named children, two died in the testator's lifetime without issue, and three survived him : — Held, that the five named children tbok as a class - and not as individuals, and that the whole resi- due was divisible among the three who survived the testator. Stanhope's Trusts, In re (27 Beav. 201), followed. Jaelison, In re, Shiers v. Ash- worth, 25 Ch. D. 1«2 ; 53 L. J., Ch. 180 ; 50 L. T. 18 ; 32 W. B. J9i— Chitty, J. Surviving Children— Issue of Deceased Child • to take Parent's Share — Issue of Children Dead . at Date of "WUl.]— A testator^ by a' codicil to his will, bequeathed to the widow of his de- ceased son the interest accruing from a sum of nioney, the payment thereof to cease upon her ■death or second marriage. He directed his executors to divide the principal' sum " amongst my surviving male and female children. Should -a male or female child's death precede mine, his or her share to be divided equally between the male and female' children of such son and -daugjitap deceased."' One son and two daughters - of the testator were dead at the date of the • codicil ; -the two dslughters each left one child. ight children of the testator survived him: — Held, that the class of persons entitled under the gift were children of the testator living at his death, and, per stirpes, the children living at his death of any child of the testator who had predeceased him, whether before or after the date of the codicil ; consequently the fund was divisible into tenths among the eight surviving children of the testator and the children of the two daughters who died in his lifetime. . Miles V. Tudway, 49 L. T. 664— Kay, J. Brothers and Sisters — Children of Objects Deceased at Date of Will.]^ — A testator, after bequeathing several pecuniary legacies, gave the residue of his real and personal estate to trustees, on trust to sell and invest the surplus after payment of his debts, and pay and divide the income unto and between all his brothers and sisters, share and share alike, during the terms of their natural lives respectively ; and upon their deaths respectively the principal of such residuary property to which each should be entitled for his or her natural life, should go to the child or children of the person or persons respectively so dying, in equal shares and proportions, and the testator stated his wish to be, and he recommended such child or children to invest the amount of their re- spective shares in the purchase of farms. The testator had two brothers, J. and C, and one sister M., all of whom were married, and had families. C. and M. were both dead at the date of the will. J. was then alive, but predeceased the testator : — Held, that the residue was divisible equally between the families of the two brothers and the sister, so that each stirps took one-third share. Walsh v. Blayney, 21 L. R., Jr. 140— V.-O. Gift of Residue to Children of Nephew to he vested at Twenty-five — Children born before and after Testatrix's Death.] — Testatrix directed that as to one moiety of the residue of her estate the trustees should hold it upon trust for the benefit of the children of her nephew, W. H., to be vested interests in them ; as to sons ■ on attaining the age of twenty-one years ; and as to daughters on their attaining twenty- five years or being married before that age ; and in case a daughter should marry under age, power was given to the trustees to settle her share. Power was also given to the trus- tees to apply the income of an expectant share of any child for maintenance, education, and bringing up ; and also to apply half of an expectant share for advancement in life. In case all the children of W. H. should die with- out taking a vested interest, there was a gift over to testatrix's brothers and sisters, &C: "W. H. had seven children, four born before the testatrix's death, all being now infanta, and three afterwards. A daughter, one of the four, had married under age : — Held, that the four children and those only could take, and that the daughter took a vested interest which at present was one-fourth. Elliott v. Elliott (12 Sim. 276) followed. Coppard, In re, Sowlett V. Hodson, 35 Ch. D. 350 ; 56 L. J., Ch. 606 ; 56 L. T. 359 ; 35 W. K. 473— Stiriing, J. Class described by Relationship — Half- blood.] — A gift in a will to a class of persons described by relationship will, in the absence of an overruling context, be construed as a 2039 WILL — Construction. 204O gift to all persons answering the relationship, whether of the whole blood or of the half- blood ; therefore, a bequest simply to " the sisters of A." will extend to A.'s sisters of the half- blood. Heed, In re, 57 L. J., Ch. 790 ; 36 W. E. 682— Chitty, J. Ascertainment of Class — &ift of Income — Period of Distribution. ] — The " rule of con- venience," by which in a bequest of an aggre- gate fund to children, as a class, payable on attaining a given age, the period of ascertaining the class is the time when the first of the class by attaining the given age becomes entitled to payment, and children coming into esse after that period are excluded, is not applicable to similar bequests of income. Wenmoth's Estate, In re, Wenmoth v. Wenmoth, S7 Ch. D. 266 ; 57 L. J., Ch. 649 ; 57 L. T. 709 ; 36 W. E. 409— Chitty, J. Life Estate determinable on Bankruptcy —Gift over to Children.] — A testator gave ■a. fund to trustees upon trust to pay the in- come to his son during his life, and after his death to pay and divide the fund equally among all the children which the son might have, as and when they should respectively attain twenty-one, and if the son should leave no child who shall attain twenty-one, the fund was to sink into the residue of the testator's estate. There was a proviso that if the son should be adjudicated bankrupt the fund and the income thereof should thenceforth imme- diately go and be payable or applicable to or for the benefit of the said child or children of the son "in the same manner as if he was naturally dead " or in default of such child or children should sink into the residue. After the death of the testator, the son was adjudicated a bankrupt ; at the date of the adjudication he had two children ; other children were born to him afterwards : — Held, that the children born after the adjudication were entitled to share in the fund subject to the contingency of their attaining twenty-one. JBedson's Ti-nsts, In re, 28 Ch. D. 523 ; 54 L. J., Ch. 644 ; 52 L. T. 554 ; 33 W. E. 386— C. A. Period of Accumulation.] — The testator directed that the rents of the trust premises should be accumulated for twenty-one years ; and that the accumulated fund should be in trust for all the children of B, who should attain twenty-one, in equal shares. B. had six children who attained twenty-one. One of them, B., was born after the eldest had attained twenty-one, but during the period of accumu- lation : — Held, that B., having been born before the period of accumulation came to an end, was entitled to take as a member of the class ; and that the fund was, therefore, divisible in sixths. Watson V. YovMg, 28 Ch. D. 436 ; 54 L. J., Ch. 502 ; 33 W. E. 637— Pearson, J. c. Vested and Contingent Inteebsts. Discretionary Trust for maintenance till youngest Child attains Twenty-one.] — A testator directed his trustees, after the death of his wife, to apply the income of his estate " in and towards the maintenance, education, and advance- ment of my children in such manner as they shall deem most expedient until the youngest of my said children attains the age of twenty- one years," and on the happening of that event he directed them to divide his estate equally among all his children then living. The testator left four children, two of whom at the death of the widow in 1884 were of age, and the youngest was in his seventh year. After the decease of the widow the trustees paid each of the adult children one-fourth of the income, and applied the other two-fourths for the benefit of the- minors equally till 1886, when J. S. C, the- eldest son, made an absolute assignment for value of all his interest under the testator's will to H. The trustees declining to pay one-fourth of the income to H. he took out a summons to- have the construction of the will determined : — Held, that no child of the testator was entitled, prior to the attainment of twenty-one by the- youngest of the testator's children, to the pay- ment of any part of the income. Coleman, In re, Henry v. Strong, 39 Ch. D. 443 ; 58 L. J.,. Ch. 226 ; 60 L. T. 127— C. A. Gift of Income for Maintenance and Educa- tion — Direction to Pay at Twenty-one.] — A testatrix, who died in 1867, by her will dated ia 1865, devised and bequeathed her real estate and the residue of her personal estate to trustees upon trust for sale and conversion, and after- payment of her debts and certain legacies, upon trust to divide the residue of the income of her personal estate and the rents of her real estate- until sold, into nine equal shares. The testatrix disposed of one of such shares in the following manner : As to one other equal ninth part or share of such dividends, rents and interest, upon trust to pay or apply the same for and towards, the maintenance and education of A., B., and C.^ and as and when they should respectively attain the ages of twenty-one years, upon trust to pay them in equal shares one equal ninth part or share of such principal moneys and the dividends and interest which might accrue due thereon. A. died in the lifetime of the testatrix. B. survived the testatrix, but died under twenty- one. C. survived the testatrix and attained twenty-one : — Held, that the gift was contingent and not vested, and that therefore B.'s share lapsed. Martin, In re, Tuke- 37_V.-C. Absolute Gift cut down.] — By his ■will, dated in 1870, a testator gave all his household furni- ture, and all his real and personal estate, and sums of money in the house, and all sums of money in the savings bank, and all other Ms- estate and effects with the exception of two 51. shares in a certain company, unto his wife, and he gave to his sons the two 51. shares ; and he also desired that, at the decease of his -wife, what might remain of his property should be equally divided amongst his surviving children. The question was whether this was an absolute gift of the property to the testator's ' widow, or whether there was a trust in favour of the testator's children : — Held, that the testator's widow took only a life interest in the property. Sheldon amd Xemile, In re, 53 L. T. 527 — Kay, J. See Coward, In re, ante, col. 2057. Remainder to Female Issue. ] — A testator, after reciting that he wished to dispose of all his worldly substance, and to settle and assure his- several estates in the counties of C. and L. to the several uses and purposes therein set forth, devised the same unto his sister A. L. for life ; and, on her death, he declared it to be his -wiU and intention to settle and assure his said estates amongst certain families named, in the following " parts or proportions ;" and he then gave to six persons one-sixth " part " each, and declared that the several six parts should re- main to each of the said devisees for life, with remainder to the first and every other son of each of the said devisees, severally and succes- sively in tail male, and in default of such issue,, then with remainder to the issue female of each or any of the said devisees, to take as tenants in common and not as joint tenants ; and that, in. case of the decease of any of the said six devisees without issue male or female, either in the tes- tator's lifetime or after his decease, then the one-sixth part or parts of those who should happen to die 'without issue should go to and augment the shares of such survivors, "so long' as the entail intended to be thereby created should continue to subsist," and, in case all Ms said estates should, under such limitations as aforesaid, vest in any one of his said devisees, or their heirs male, his will and intention was, that such person should take the name and arms of the testator : — Held, that under the above wiU,. the six devisees took estates for life only, vrith remainder (after the express estates in tail male limited to their first and other sons) to. 2061 WILL—rConstruction. 2062 tlneir issue female in fee as purchasers, i^hannon ijEarl) V. Good, 15 L. K., Ir. 284^0. A. Crift of Bents— Gift over on Beath to Children.] — A testator bequeathed leaseholds to a trustee upon trust to give yearly equal portions of the rents to the two brothers and three sisters of the testator ; that was to say, each to receive one- iifth part of the net proceeds of rent ; and he directed that, on the decease of any or all of his brothers and sisters, " the same should go to their children " : — Held, that the brothers and sisters of the testator took life interests only. Houghton, in re, SougMon v. Brown, 53 L, J., Ch. 1018 ; 50 L. T. 629— Pearson, J. Estate in qnasi Tail — Issue taking as Purchasers.] — A testator who held under a lease for lives renewable for ever, by his will made before the WiUs Act, 1837, devised all his estate in the lands to trustees upon trust for the main- tenance of his sou G. S. R. during his minority. He directed that the residue of the rents should accumulate for G. S. R. till he married or attained twenty-one, when the accumulations should be handed over to him. And as to the said lands, the testator declared that they were given to the trustees on trust for accumulation of the rents as aforesaid, and in the next place, to suffer G. S. E. to take the rents of the said lands for Me, and after his death then to the issue of G. S. E. lawfully begotten, in such shares and proportions as G. S. E. should appoint, and for want of appointment, the said lands to go to and among all the lawful issue of G. S. E. living at the time of his death, share and share alike, and, it but one child living, then the whole of the lands to go to such only child, his or her heirs or assigns for ever. If G. S. R. should die without leaving issue, the testator devised the lands over to E. R. and T. R. in fee. G. S. R. attained twenty-one and obtained a fee- farm grant of the said lands in which it was recited that G. S. E. was tenant for life : — Held, that G. S. E. took an estate for life only in the lands, with remainder to his issue living at his death in quasi fee, and that on his death without issue E. R. and T. R. became entitled to the lands. Rotherham v. RotTierliam, 13 L. R., Ir. 429— C. A. Equitable Estate — Attaining Twenty-one.] — A testator devised freeholds and chattels toge- ther to trustees on trust to permit his wife to reside on the property, and have the use of the chattels until his youngest son attained twenty- one, when the whole was to be divided among his three children, they paying the wife an an- nuity if then living :— Held, that the interests of the children in the freehold after the youngest attained twenty-one were equitable. Fowke v. Brayoott, 52 L. T. 890 ; 33 W. E. 701— North, J. Payment of Bents to Harried Woman- Direction to Trustees to Eepair.] — A testatrix by her will directed her trustees to stand possessed of the net rents of her real estate, upon trust to pay the same to Mrs. W., a married woman, for life, for her separate use, her receipt alone to be a suflBcient discharge to the trustees; and the testatrix directed her trustees, out of the rents of her real estate, to keep in repair all the buildings on the estate during the period of their trust, and also the chancel of P. Church. No power of sale or leasing was contained in the will; — Held, that, notwithstanding the direction to the trustees with respect to repairs, Mrs. W. was equitable tenant for life of the settled land, and, as such, was entitled to be let into the pos- session and management of the estate, upon her undertaking to see to the irepairs. Bentley, In re. Wade v. Wilson, 54 L. J., Ch. 782 ; 33 W. E. 610 — Pearson, J. , c. Estate Tail. " Child or Children "—" Dying without Issue " — Bule in Shelley's Case.]— A will made in 1820 contained the following clause, " I give and devise unto my eldest son Thomas all my real and freehold estate and all leases and leasehold premises now in my possession (subject to the payment of the rents and the performance of the covenants mentioned in the. said indentures of leases) during the term of his natural life, and after his decease to his legitimate child or children (if there be any) ; but if he dies without issue, my will is it may go, unto my other son William during the term of his natural life, and afterwards to his legitimate child or children (if any) ; but if he should likewise die without issue, my wiU is it may go to my daughter Mary and to her heirs and assigns for ever." The will then gave legacies to the second sou and the daughters, with provi- sions for the daughters, to be paid in the first instance by Thomas, but to be repaid in part or in whole to him in certain events by his successor in the estate. Thomas died without issue : — Held, by Earl Cairns and Lords Blackburn and Fitz- gerald, that reading the whole will together, Thomas took an estate tail in the realty. Contra, by the Earl of Selborne, L. C, and Lord Bramr well, that Thomas took an estate for life, with remainder to his children (if any) in fee as purchasers. Bowen v. Lewis, 9 App. Cas. 890 ; 54 L. J., Q. B. 55 ; 52 L. T. 189— H. L. (E.). "Issue" with Words of Limitation super- added.]— A testator by his will, dated 1860, dis- posed of all his real estate, subject to an interest therein to his wife for life, in favour of his six nephews, " and all my right, title, and interest to and in the same and every part thereof, to be equally divided amongst my six nephews, share and share alike, and their issue after them, to and for their heirs, executors, administrators, and assigns." The question arose whether the word "issue," with the words of limitation superadded, operated to give an estate tail, or whether the issue took as purchasers : — Held, that the words in question created an estate tail in the six nephews ; that ■ the addition of a limitation to the heirs general of the issue would not prevent the word "issue" from operating to give an estate tail as a word of limitation ; that in this case the words "equally divided ' ' made the estate divisible into six shares, and there were no words to subdivide those shares, and consequently that the .subsequent words " heirs, , executors, administrators;, and assigns," must.be rejected. Williams v. Williams, 51 L. T. 779 ; 33 W. R. 118— Chitty, J. Implied Estate Tail— Bule in Shelley's Case.] — G., who died in 1837, by will devised certain freehold hereditaments to W. B. for life, and if he should die without having a son, over. W. B. 2063 WILL — Construction . 2064 entered into possession of the property and died in 1882, leaving a son, W. R. B., who entered into possession of the property, and contracted to sell it. The purchaser having objected to the title, a summons was taken out under the Vendor and Purchaser Act : — Held, that there was an implied gift to the son of W. B., and this implied gift following on the gift to W. B. for life, was equivalent to a word of limitation, and therefore, by the rule in Shelley's case, gave W. B. an estate in tail male, and as this had not been barred, W. E. B. was entitled to the property for an estate in tail male. Sird and Sarnard, In, re, 69 L. T. 166— North, J. Contingent Estate Tail. ]— Devise of the testator's Galway estate to the use of his daughter F. for life ; remainder to the use of the second son of F., and the heirs male of the body of such second son ; remainder to the use of the third, fourth, and all and every the son and sons of F., severally, successively, and in remainder, one after another, as they shall be in order of age and priority of birth, and the heirs male of the body and bodies of all and every such son and sons ; remainder to the daughter and daughters of F., equally to be divided amongst them in such shares, &c., as F. should by deed or will appoint, as tenants in common, and the heirs of the body and bodies of all and every such daughter and daughters ; " and in default of issue male or female of F.," to the use of testator's daughter Marion, and her issue male or female, in the same manner as other estates of the testator were by the same will devised to her and her issue ; remainder to the testator's right heirs, on the express condition that none of his daughters should take the veil and become a nun. And in case any of them should do so, such daughter should forfeit all her right and title to such estate and lands, and her estate so forfeited should thenceforth be vested in and divided among her surviving sisters (excepting two) and their issue, share and share alike. And he left the residue of his property to his four daughters, M., L., F., and Marion. And in case all his children should die without issue, he devised all his estates to his wife for life, and after her decease to his right heirs for ever. In 1865 F., by a disentailing deed, recited the limitations of the Galway estate, and that she had been advised that she might be entitled under them to an estate tail by implication in remainder, expectant upon the determination of the express estates tail limited to the second and other succeeding sons, and to her daughters ; and that she was desirous in the event of her being entitled to such estate tail in remainder by implication, of barring the same, and converting it into an estate in fee simple, granted all the lands in Galway so devised to her, and all other the hereditaments in which, under and by virtue of the said will, she was entitled to any estate tail, fee, and all her estate and interest therein, to a trustee, discharged from all remain- ders, &c., to such uses as she should appoint ; and in default, and subject to such appointment, to the use of F. and her heirs. In 1866 Marion became a professed nun. In 1868 F. by her will devised the residue of her property, subject to some pecuniary legacies to Marion, and died without issue in 1880 :— Held, 1. That F. did not take an estate tail by implication in the Galway lands. 2. That, on Marion becoming a professed nun, her vested remainder for life passed to M., I L., and F., as tenants in common in quasi tail. 3. That F.'s quasi estate tail in one-third of Marion's life estate was not baiTed by the dis- entailing deed, and that on F.'s death one-third of Marion's life estate, which went over to F. on Marion becoming a professed nun, passed under the residuary clause in the original testator's will to M., L., F., and Marion absolutely. Grattam, V. Langdale, 11 L. K., Ir. 473— M. K. Limitation whether executory.] — By his will a testator devised his W. property to J. F. L. and declared that he was to hold it with other pro- perty for his life, and after his decease to the use of his ii rst and other sons successively, one after another, in tail male, with several remainders over. He afterwards purchased the lands of D., and by a codicil devised them to J. F. L., he paying any part of the purchase-money which remained unpaid, to hold it subject to the same entail as the W. property ; and by another codicil, dated six years afterwards, devised it to J. F. L. and " entailed it in him and his issue male " : — Held, that J. F. L. took an estate in tail mail in the lands of D. Lowry v. Lowry, 13 L. K., Ir. 317— M. R. Charge on Lands.] — By a will, coming into operation prior to the Wills Act, the testator devised all the freehold estate, right, title, and interest, in certain lands to his wife for lite subject to legacies ; remainder to his son J. for life ; remainder, after the decease of J., " to his first and every other sou lawfully to be begotten according to senioiity of age and priority of birth ; " remainder to T. for life ; remainder to his first and every other son and their heirs. In a subsequent part of the will the testator be- queathed a sum of money, charged on the said lands to his daughter M., and desired that, in case she should die unmarried, it should go and enure to J., if then living, or the heirs male of his body. In action brought by J. B., who was J.'s younger son, to recover possession of the lands on the title : — Held, that the plaintiff was entitled to an immediate estate for his life, and accordingly to recover possession of the lands. Palmer v. Palmer, 18 L. E., Ir. 192 — C. A. Subject to Condition.] — A testator by his will, dated in 1885, appointed executors, and continued as follows : '■ T give to my two sous ... all my real and personal property . . . for their natural life, subject to the condition of paying" the legacies therein mentioned. "If my sons marry and have issue, I give to each of their heirs their father's share, and to their heirs for ever ; if there is no male issue with either of my two sons, and there is female issue, then the father's share shall be divided between them share and share alike as tenants in common, and to their heirs for ever. Should either of my sons die without issue, then such son's share shall go to my other son and to his heirs for ever. Should both of my sons die without issue, then at the death of the last of them, I give all my real pro- perty to the whole of my grandchildren share and share alike as tenants in common, and to their heirs for ever." He then directed that his two sons should pay out of his real property any payment due and owing thereon : — Held, that the two sons took the real estate in tail male. Score, In re, Tolman v. Score, 57 L. T. 40 — Kay, J. 2065 WILL — Construction. 2066 5. BEQUESTS AND DEVISES. a. Particular Words. General Words followed by Particular — Resi- •due.] — A testator by his will having made a bequest of a sum of money secured by a mort- gage proceeded in the following terms : — I leave •" the remainder of my peraonal property in funds, royal bank, and other deposit dockets to my wife absolutely." He left pecuniary legacies to two individuals : — Held, that the words " in funds, royal bank, and other deposit dockets," ■did not cut down the generality of the gift of ■" the remainder " of his personal estate, which passed to the testator's wife under the bequest. lighe v. Featlierstonhavgli, 13 L. K., Ir.401 — V.-C. " All my property Leasehold and Freehold."] — R. by will, after appointing executors and directing his debts and funeral expenses to be paid, gave his wife " all my property leasehold and freehold which I now possess : " — Held, that all the testator's real and personal estate passed under the gift to his widow, and not only his leaseholds and freeholds. Roberts, In re, ICiff T. Roberts, 55 L. T. 498 ; 35 W. E. 176— C. A. Affirming 55 L. J., Ch. 628 — Pearson, J. See Portal and Lamb, In re, post, col, 2087. " All my Interest " — Will made before 1 Vict. «. 26.] — A testator iu a will made before the WUls Act gave and bequeathed " all the interest of my houses and cottages situated as follows." He then proceeded to dispose of this property, which was copyhold, and, after giving life interests, concluded with a gift to T. S. : — Held, that the words " all my interest " at the com- mencement of the will ran through the whole will, and were not in the nature of a recital merely, and that T. S. took the fee. De la Hunt ■and Pennington, In re, 57 L. T. 874 — Chitty, J. " All my Personal Property " — Enumeration comprising Eeal Estate — After-acquired Free- Jiolds.] — ^A testator, by his will, dated in 1875, gave and devised to the wife Eebecca " all my personal property, wherewith it has pleased God to bless me ; that is, my freehold land, and my two cottages, Pennce Eirr, situated at Clow- stop . . . also my five leasehold houses ... to have and to hold the same for her natural life." He then directed her to provide " out of "the rents of the above property " for a grand- daughter of hers, and concluded, " my wife Eebecca to be sole executor of the same." Sub- sequently to the date of his will the testator acquired other freehold property at Clowstop, of ■which, together with personal property, besides the leaseholds, he died possessed. The question was, what property passed by the will : — Held, that the words " personal property " were not used in their technical sense ; that the testator aueant to give all the property of every kind be- longing to him personally ; that this general ■description was not cut down by the words of ■enumeration which followed ; and that the widow -was entitled, for her life, to all the real and per- :Sonal estate of the testator which he possessed at the date of his death. Smalley, In re, Smalley T. Smalley, 49 L. T. 662— Kay, J. "Eeal Estate" — Leaseholds for Tears.] — A testator by his will, dated in 1870, declared that Shis trustees should stand possessed of and inter- ested in the annual income and proceeds of his real and personal estate in trust to pay an annuity to his wife, and after her decease he declared and directed that his trustees should stand possessed of and interested in his real and personal estate upon the trusts and for the intents and purposes following, that is to say, " as to my real estates wheresoever situate (the Victoria Park Cemeteiy in the parish of St. Matthew, Bethnal Green, excepted) " in trust to pay the annual rents and proceeds thereof to two children as therein mentioned, " and as to my freehold estate called the Victoria Park Cemetery, and my personal estate wheresoever situated, upon trust to pay the dividends, inte- rest, and annual proceeds thereof," to his five daughters in equal proportions. The personal estate comprised certain leaseholds for years : — Held, that according to the true construction of the 26th section of the Wills Act (1 Vict. u. 26) the leaseholds for years did not pass under the gift of the real estates. Wilson v. Mden (16 Beav. 153), discussed ; Turner v. Turner (21 L. J., Ch. 843), and Gully v. Daxis (10 L. R., Eq. 562), discussed and distinguished. Butler V. Butler, 28 Ch. D. 6S ; 64 L. J., Ch. 197 ; 52 L. T. 90 ; 33 W. E. 192— Chitty, J. B., by will, gave all his real estate in Kent to trustees upon trust for his sons, in strict settle- ment, and he gave all his real estate in the several counties of Durham and Middlesex, and elsewhere, and certain land at StOlington, in the county of Durham, held on lease from Merton College, Oxford, and all the residue of his personal estate, upon trust as to the personal estate for sale and conversion as therein men- tioned, and as to the said real and leasehold estates in the counties of Durham and Middlesex, subject as to the said leasehold estate to the rents and covenants in the then present or any future lea^e thereof reserved or contained, upon the like trusts as wei-e thereinbefore declared concerning the hereditaments in Kent. The testator at his death possessed in Kent a freehold mansion and estate ; in Middlesex, a leasehold house only, and no real estate properly so called ; in Durham, both freehold and leasehold lands in addition to the lands at Stillingtnn mentioned in the will :— Held, that s. 26 of the Wills Act applied, and all the leaseholds passed under the gift of real estate in the counties of Durham and Middlesex. Davison, In re, Grcenwell v. Davison, 58 L. T. 304— North, J. "My freehold farm and lands " — Copyholds,] — A testator devised a farm by the description of " my freehold farm and lands situate at Bdgware, and now in the occupation of James Bray." The will contained no residuary devise. The farm comprised about seventy-six acres, of which twenty-six were copyhold : — Held, that the copyhold parts of the farm passed under the devise. Ifall v. FisJier (1 Coll. 47) and Stone v. Greening (13 Sim. 390) discussed and questioned. Bright-SmitJi, In re, BrigM-Smitli v. Bright- Smith, 31 Ch. D. 314 ; 55 L. J., Ch. 365 ; 54 L. T. 47 ; 34 W. E. 252— Chitty, J. " Leasehold House " — Stables, whether in- cluded.] — A testator bequeathed to his wife his leasehold house, No. 32, Princes Gate. Together with this house he had at the time of his death occupied stables called No. 3, Princes- mews, which were originally held under a dif- 2067 WILL — Construction. 2068 f erent lease from the house, ' though each lease was entered into on the same day, and they were for exactly similar terms, and between the same lessor and lessee. Upon the purchase of the house and stables by the testator from the original lessee, they were assigned to him by one deed, and afterwards the testator again assigned both house and stables by one deed by way of mort- gage : — Held, that the stables passed with the house to the wife. Miicatta, In re, Mocatta, v. Mocatta, 49 L. T. 629 ; 32 W. E. 477— Pearson, J. "Lease of House" — Preehold.] — A testator gave the lease of the house in which he should be living at the time of his decease to his wife. At the date of the will he was living in a house he held for a short term at a rack-rent ; he sub- sequently bought and went to reside at a free- hold house where he died : — Held, that the freehold house was not devised to the testator's widow. KnigM, In re, Knight v. Burgess, 34 Ch. D. 518 ; 56 L. J., Ch. 770 ; 56 L. T. 630 ; 35 W. B. 536— North, J. " Temporal Effects."] — " Temporal effects " in a will were held to include real estate. Sheridan, In re, 17 L. E., Ir. 179— Monroe, J. " Money,"] — In construing a will no absolute technical meaning should be giving to such a word as " money," the meaning of which must depend upon the context, if any, and such sur- rounding circumstances as the court can take into consideration. A testatrix who was pos- sessed of cash, securities, leaseholds, furniture, and effects, by her will, made in expectation of her death, which occurred two days after its date, gave " one halE of the money of which I am possessed to H., and the remainder equally between 0. and S., and after them to their chil- dren " : — Held, that the word " money " passed all the personal estate. Cadogan, In re, Cadogan V. Palagi, 25 Ch. D. 154 ; 53 L. J., Ch. 207 ; 49 L. T. 666 ; 32 "W. E. 57— Kay, J. L. by her will desired that all her debts, funeral and testamentary expenses should be paid, and if she should not leave enough money for that purpose, she desired that sufficient to pay her debts might be sold of the property she purchased from E. She gave the remainder of of that property to W. specifically ; and, after making certain specific bequests of furniture and jewellery, gave her interest in certain real estate to A. and made him her residuary legatee. The property purchased from E. was leasehold, held for a very long term of years. The testatrix at her death possessed no actual cash. She had a small sum due to her for rents, and the half of a turnpike bond, besides furniture, the property purchased from E., one leasehold dwelling-house, and the real estate specifically devised to A. : — Held, that the word " money " must be taken to mean not the general personal estate, but the rents and money due on the bond, and those being exhausted, the residue of the debts must be paid out of the property purchased from E. in exoneration of the furniture and leaseholds. Lloyd V. Lloyd, 54 L. T. 841 ; 34 W. E. 608— North, J. At the date of the will in August, 1881, the testatrix had over 600Z. at her bankers. In February, 1883, she invested 600Z. in the pur- chase of 586Z. Consols. At the date of her death in May, 1884, she had the 586Z. Consols, 555Z. at her bankers, and U. cash in her house ir-Held, that the word " money " in the will ought not tO' be extended beyond its strict meaning. Sutton^ In re. Stone y. Att.-Gen., 28 Ch. D. 464; 33- W. E. 519— Pearson, J. "All my 'Moneys " — Extent of Gift] — A testatrix, by her will dated in 1874, appointed executors thereof, gave pecuniary legacies to ser- vants, and directed her debts and expenses to be paid, and continued : — " I give in equal shares- all my moneys to my brothers and sisters as shall be living at my decease." Then she went minutely through her furniture and similar articles, bequeathing them to different members, of her family, but some articles of furniture,. &c., were omitted from the bequest, and the will contained no mention or express disposition of any stocks or investments, nor any residuary clause. By a codicil, dated in 1883, the testatrix bequeathed her furniture, &c., which might be in the house in which she and her sister X. should be living together at the time of her decease to X. for life, and, after her death, she directed that the same should belong to the per- sons to whom the same effects were bequeathed by her will, and in all other respects she con- firmed her will. The testatrix died in Septem- ber, 1883, possessed of New Three per Cents, standing in her name ; bonds of a foreign govern- ment payable to bearer ; consolidated and pre- ference stock of a railway company, legistered in her name in the company's books ; sums due to her ; cash in her house ; and furniture, &c., some of which was not specifically mentioned in the will : — Held, that the intention of the testatrix appearing from her wUl and codicil was to dis- pose — first, of all her moneys ; secondly, of all her furniture, &c. ; and therefore that, though the gift of all her moneys could not be read as a residuary clause, it must be read as applying to all the property of which the testatrix died pos- sessed, other than furniture, &c., and that the furniture, &c., not specifically disposed of was, therefore, the only property as to which the testatrix had died intestate. Lowe v. Thomas (5 De Gex, M. & G. 315), distinguished. Townley, In re, Townley v. Townley, 53 L. J., Ch. 516 ; 50 L. T. 394 ; 32 W. E. 549— Pearson, J. " Remainder of my Money."] — The words "remainder of my money" pass all stocks and investments of money, but not the general residue other than such investments. Sart v. Heriiandc:, 52 L. T. 217 — Pearson, J. " Securities for Money."] — A testator, who . died in 1878, bequea,thed all his " moneys due on mortgage, securities for money, and ready money," to trustees upon trust for his chUdren. . Part of the testator's property consisted of the . following : (1) Consols ; (2) Proportion of divi- dend on such Consols to the date of the testator's ■ death ; (8) Promissory notes ; and (4) Eailway debentm-e stocks. The question was, whether - such property passed under the specific gift : — Held, that the Consols and promissory notes ■ were " securities for money " within the mean- ing of the gift, and so also the railway debenture stocks, it being expressly provided by s. 23 of the Companies Clauses Act, 1863, that deben- ture stock and interest thereon should be a charge upon the undertaking of the company. But, held, that the proportion of dividend on the- 2069 WILL — Construction. 2070 Consols did not pass, as the Apportionment Act, 1870, applied,,and the dividend must therefore be apportioned as at the date of the testator's death. £eav«a, In re, Beaten t. JBeaven, 53 L. T. 245— Kay, J. " Stock Standing in my Name."] — Where a testator made a specific bequest of " all my stock standing in my name in various companies, together with all bonds, &c." : — Held, that sums in Consols, and in New Three per Cent. Annui- ties, a thirty years' annuity, also sums of New Zealand Four per Cent, stock ; of Victoria, 1883, Four per Cent, stock ; of New South Wales Four per Cent, stock ; of Metropolitan Board of Works stock ; of Nottingham Corporation stock and dividends, passed under the bequest. Parrott, In re, Parrott v. Parrott, 53 L. T. 12— V.-C. B. " Shares " in Company— Debentures.] — A tes- tator bequeathed all his stock, shares, and deben- tures in the M. bank, shares in four other com- panies (including the A. Gas Company), and all other shares in banks or public companies, not otherwise disposed of. At the time of his death the testator possessed one hundred and thirty- five shares in the A. Gas Company, and also 2,000Z. debentures in that company : — -Held, that the debentures did not pass under the bequest. I/uard V. Lane (14 Ch. D. 856) questioned. Billon V. ArUns 17 L. £., Jr. 636— C. A. "My Property at B.'s Bank" — Cash Balance — Share Certificates.] — Bequest of "half my property at E.'s bank." At the time of his will and of his death the testator had at E.'s bank in Paris a cash balance and certificates of French shares, some inscribed and some transferable by delivery, which were deposited with the bankers, who received the dividends and carried them to his credit. He had nothing else at the bank : — Held, by the court of first instance, that only half of the cash balance passed by the bequest : — But held, on appeal, that a moiety of the shares also passed. Prater, In re, Bemige v. Beare, 37 Ch. D. 481 ; 57 L. J., Ch. 342 ; 58 L. T. 784 ; 36 W. E. 561— C. A. Bequest of Fund " to be Settled."] — ^A testator bequeathed as follows : " To my daughter A., wife of M. W., I bequeath 10,00bZ. This amount to be settled upon her for her life, and to be in- vested for her in good securities in the names of two or more trustees. At her death 8,O00Z. of the above sum to be divided equally amongst her children, and the remaining 2,000^. to be given to her husband if living ; i£ deceased, then the whole amount is to be equally divided amongst her children." The daughter and her husband and child applied for the sanction of the court to a settlement of the legacy : — Held, that a settlement ought to be directed, treating the directions in the will as instructions for a settlement. Parrott, In re, Walter v. Parrott, 33 Ch. D. 274 ; 55 L. T. 132 ; 34 W. E. 553— C. A. Bequest of 2,000Z., for the benefit of a feme sole, " to be paid upon her marriage, and to be settled upon her by her settlement," the interest to be paid to her in the meantime ; and, in case she should not marry before attaining the age of thirty-five years, the principal sum to be paid to herself. The legatee married under the age of thirty-five years, and applied for payment of a sum of money in court, which represented the legacy : — Held, that a settlement should be made of the legacy upon the legatee and her childi-en. Bueltett V. Thompson, 11 L. E., Jr. 424— V.-C. " To select and set aside Collection."] — A testatrix bequeathed certain legacies to A. C, sixth Earl of E., and as to all her household furniture, paintiags, books, china, and the whole contents of her house, she bequeathed the same to her trustees and executors upon trust that they should in the first place select and set aside a collection of the best paintings, statuary, and china for the said Earl of E., and his successors, to be held and settled as heirlooms, and to go with the title : — Held, that the gift was a clear direction to settle, and created an executory trust, and a settlement was directed (to be settled in chambers) giving a life interest to the sixth Earl, with remainder to the next heir to. the earldom for his life. Johnston, In re, Cockerell v. Usseio (^Barl), 26 Ch. D. 538 ; 53 L. J., Ch. 645 ; 52 L. T. 44 ; 32 W. E. 634— Chitty, J.. " TuU Salary" — Legacy duty.] — A gift of six months' full salary is not a gift free from legacy duty. Marcns, In re, Marcus v. Marcus, 56 L. J., Ch. 830 ; 57 L. T. 399— North, J. Mortgages on Eeal Security.] — Specific bequest of all moneys, stocks, funds, shares, and other securities, " except mortgages on real and. leasehold security " ;— Held, that mortgages of turnpike road tolls and mortgages of turnpike road tolls and toll-houses were not mortgages on real security, and did not come within the exception in the bequest. Catendish v. Caven- dish, 30 Ch. D. 227 ; 55 L. J., Ch. 144 ; 53 L. T. 652— C. A. Business and Goodwill.] — The testator directed his executors to assign and transfer to H. " my business and the goodwill thereof, with the premises in which the same shall be carried on " : — Held, that the capital of the testator employed in the business at his death and the stock-in-trade did not pass to H. under this bequest, and that the debts due to the business formed part of the capital, but the sacks, horses, and drays did pass to H. Belany v. Delany,. 15 L. E., Ir. 55— V.-C. " Share, Bight and Interest " in Partnership.] — B. bequeathed all his " share, right, and in- terest " in the goodwill of a partnership business, and in the partnership real and personal estate, to his son, upon trusts for the benefit of the tes- tator's wife and children : — Held, that a debt due to B. from the partnership, and on which he was receiving interest, did not pass by the trust bequest, but formed part of the testator's residuary estate. Beard, In re, Simpson v. Beard, 57 L. J., Ch. 887 ; 58 L. T. 629 ; 36 W. E. 519— North, J. "Fortune " — Words of complete Disposition— Foreign Eeal Property.] — A testatrix, of French birth, made her will, dated 1868, iu the French language. The will was, however, in English form, and the testatrix's domicil was English. The testatrix gave legacies and annuities to various persons, including her only daughter, and. a specific legacy of articles of vertu to her only son. The testatrix then declared that, after the deduction of all the above bequests, together with the necessary sums to secure the payment of the annuities, the residue of her fortune (le 2071 WILL — Construction. 2072 surplus de ma fortune) should belong to her grandson. The only real estate which the testa- trix possessed was situate in France. Her personal property was not quite sufficient to pay all her debts and legacies. The question was, whether the testatrix's real estate in France, devolving to her French heirs, could be taken as intended by the testatrix to be comprised in her will, and to be Bubjected by her to the same obligation of contributing to the payment of debts and legacies, in which event the French heirs would be put to their election : — Held , that according to the authorities, the universality of a gift of property contained in a will was not sufficient to demonstrate or create a ground of inference that the testator meant it to extend to property which was incapable, although his own, of being given by the particular instrument ; and that, therefore, the testatrix could not be said to have intended to affect her French real estate, there being nothing in the will from which the court could infer any such intention so as to take the case out of the rule above stated. Baring v. AsKburton, 54 L. T. 463 — Chitty, J. " Furniture, Goods, and Chattels."] — A testa- tor, after bequeathing pecuniary legacies, di- rected them to " be paid from such part of my personal estate as shall consist of money at my bankers or in the 3 per cent. Consols." And after directing that the whole of his income should be devoted to the comfort and mainte- nance of his wife, and that she should have the use of his residence, he desired " that the furni- ture, goods, and chattels be not sold during my wife's lifetime, but at her decease to be divided a,mong the executors" : — Held, applying the rule, ejusdem generis, that the gift of "furni- ture, goods and chattels," passed only such furniture, &c., as, on the house being let fur- nished, would go with the occupation of the house, and not such articles as jewellery, guns, pistols, trioyles, and scientific instruments, Manton v. Tahois, 30 Ch. D. 92 ; 54 L. J., Ch. 1008 ; 53 L. T. 289 ; 33 W. K. 832— V.-C. B. " Other Household Effects " — Wine.] — A testator by his will, made on the 21st Decem- ber, 1879, devised his property, known as Heath- field, with the offices, gardens, fields, and appur- tenances belonging thereto, to the use of his wife, and then the will went on : " I bequeath all my furniture, pictures, plate, jewellery, horses, and carriages, and other household effects, to my said wife absolutely " : — Held, that all the wine at Heathfield passed under the words "other household effects." Bourne, In re, Bourne v. Brandrcth, 58 L. T. 537— Kay, J. Cash and Book Debt.] — Under a residuary gift of " all my household furniture, wines, car- riages, horses and other effects, .except my jewellery " : — Held, that 750Z. in cash and a book debt of 2201. passed. Parrott, In re, Parrott, 53 L. T. 12— V.-C. B. ■■ All Consumable Stores, Except Wines."] — By his will the testator bequeathed to B. certain other legacies, " also all consumable stores in my house, except wines, with respect to which she may have as much as she requires for con- sumption in the house, and with respect to the rest to which I have hereafter given specific directions in dealing with my house." In a sub- sequent part of the will the testator gave to his trustees his house and all the furniture, plate, linen, china, wines, and other goods, chattels, and effects therein, at the time of his decease, and certain other premises occupied by him, in trust ; to permit B. to use and occupy such house, furni- ture, plate, china, and other things, and to con- sume as much as she cared to do of his wines for and during her life, free of all rent or compensa- tion of the same, and free of all obligation to repair or insure the premises or property (which he expressly directed his trustees to do), and free of all rates, taxes, tithes, and other out- goings (all of which he directed his trustees to discharge) ; and after the death of B., the house and property were to fall into and form part of his residuary estate : — Held, that B. was only entitled to the wines which she might require for consumption ; that the rule with regard to gifts of all consumable articles could not be ex- tended to a gift such as this ; and that B. was not entitled to all the wines absolutely, though it might be that she and her friends would con- sume the whole during her occupation of the house. Colyer, In re, MilKhin v. Snelling, 55 L. T. 344— Kay, J. "Contents of House."] — A testatrix be- queathed certain legacies to A. C, sixth Earl of E., and as to all her household furniture, paintings, books, china, and the whole contents of her house, she bequeathed the same to her trustees and executors upon trust that they should in the first place select and set aside a col- lection of the best paintings, statuary, and china tor the Earl of E., and his successors, to be held and settled as heirlooms, and to go with the title," and she authorised them to give to the said Earl or his successors, any articles of fur- niture which they should think fit, and as to all the rest and residue of the contents of her house upon trust for her trustees to select presents for her friends, and directed them to present any portion of the residue of the contents of her house to her cousins if they should think fit, or to sell the same, and the moneys so received to form part of her residuary personal estate. The testatrix died possessed of considerable per- sonal estate, which comprised amongst other things, a number of articles of jewellery which were at her death in a box at her bankers, which jewellery had been bequeathed to her. It was proved that it had been the practice of the testa- trix, and also of the former owner, to send such box for safe custody to the bankers, when they respectively were away from London : — Held, that the box of jewellery passed to the trustees as part of the contents of the house, that being the locality to which the property ought to be ascribed, although jewellery is merely for personal use, and is not appropriate to a house. Johnston, In re, Cocherell v. Essex {EarV), 26 Ch. D. 538 ; 53 L. J., Ch. 645 ; 52 L. T. 44 ; 32 W. R. 634— Chitty, J. Direction that Share "shall fall into Besi- due."]^ — A testator bequeathed the residue of his personal estate to his wife for life, and after her death to his sister and three brothers in equal shares ; but directed that in the event of his sister dying unmarried in his wife's lifetime (which happened), " her one-fourth should fall into the residue " : — Held, that there was no in- testacy as to the sister's one-fourth, but that the whole residue was, on the widow's death, di- 2073 WILL — Construction . 2074 visible in thirds between the three other lega- tees. SumMe v. Shore (7 Hare, 247 ; 1 H. & M. 550, n.). LigWoot r. Burstall (1 H. & M. 546), and Orawsliaw v. Orawshaw (14 Ch. D. 817) considered. Rhoades, In r«, Lane v. Bhoades, 29 Ch. D. 142 ; 54 L. J., Ch. 573 ; 53 L. T. 15 ; 33 W. E. 608— V.-C. B. b. Conditions. i. Bepiignancy. Devise in Fee — Restraint on Alienation.] — A condition in absolute restraint of alienation annexed to a devise in fee, even though its operation is limited to a particular time, e.g., to the life of another living person, is void in law as being repugnant to the nature of an estate in fee. Macleay, In re (20 L. R., Eq. 186), com- mented on. iMrgc's caxc (2 Leon. 82 ; 3 Leon. 182) explained, jkosher, In re, Roslier v. Rusher, 26 Oil. D. 801 ; 53 L. J., Ch. 722 ; 51 L. T. 785 ; 32 W. R. 820— Pearson, J. A testator devised an estate to his son in fee, provided always that if the son, his heirs or devisees, or any person claiming through or under him or them, should desire to sell the estate, or any part or parts thereof, in the life- time of the testator's wife, she should have the option to purchase the same at the price of 3,000Z. for the whole, and at a proportionate price for any part or parts thereof, and the same should accordingly be first offered to her at such price or proportionate price or prices. The real selling value of the estate was, at the date of the will and at the time of the testator's death, 15,000Z. : — Held, that the proviso amounted to an absolute restraint on alienation during the life of the testator's widow ; that it was void in law ; and that the son was entitled to sell the estate as he pleased, without first ofiering it to the widow at the price named in the will. li. A. was entitled under the will of his father, to an income amounting to 109Z. is. 6d., arising from houses in the city of Cork and certain shares vested in trustees, being a third share of the father's estate, upon trust " for the sole use and benefit " of the respondent, and "to be assigned, transferred, and handed over to him as soon as conveniently may be " after the decease of the father. The will directed that if any of the three sons of the testator should die unmarried and without issue his share should go to the survivors, and it was further provided that neither of the sons of the testator should have power to mortgage, sell, alien, charge or incumber any part of the property assigned to them, and that in the event of either of them doing so the trustees should stand possessed of his share : — Held, that A. took an estate in fee simple under the will, and that the provision for forfeiture in case of alienation was therefore void. Corhett V. CorUtt, 14 P. D. 7 ; 58 L. J., P. 17 ; 60 L. T. 74 ; 37 W. R. 114— C. A. A testatrix gave certain real and personal estate " upon trust for my third son, J. , his heirs and assigns ; but if my said son should do, execute, commit, or suffer any act, deed, or thing whatsoever whereby or by reason or in conse- quence whereof, or if by operation of law, he would be deprived of the personal beneficial enjoyment of the said premises in his lifetime, then and in such case the trust hereinbefore contained for the benefit of my said son shall absolutely cease and determine, and the estates and premises hereinbefore limited in trust for him" should go and be held in trust for his wife, or, if no wife then living, for his children equally. J. survived his mother, and was still living, a bachelor : — Held, that he took an absolute interest under the gift, and that the attempted executory gift over was void for repugnancy. Conditional gifts by way of re- straint on alienation, discussed. Dugdale, In re, Dugdalv v. Dugdale, 38 Ch. D. 176 ; 57 L. J., Ch. 634 ; 58 L. T. 581 ; 36 W. R. 462— Kay, J. Executory Devise — Death of Devisee without leaving Issue.] — A testator devised real estate to his son and his heirs ; and then declared that in case his said son should die without leaving lawful issue, then and in such case the estate should go to his son's next heir-at-law, to whom he gave and devised the same accordingly : — Held, that the contingency of death without leaving issue was not confined to death in the lifetime of the testator, but referred to death at any time ; and that the gift over was repugnant and void ; and that the devisee took an absolute estate in fee simple. Parry and Daggs, In re, 31 Ch. D. 130 ; 55 L. J., Ch. 237 ; 54 L. T. 229 ; 34 W. R. 853— C. A. Fee Simple Estate — Name Clause.] — A tes- tatrix, who died in 1832, settled her freehold estate upon her grandchildren, a share becoming vested in one of them, Lucy, in fee simple in possession ; and the will contained a proviso that any person becoming entitled in possession to the estate should within one year thereafter, take and use the name of " Jones," and that in case any such person should refuse or neglect to use the name of Jones within one year, then the estate limited to him or her should be void, and should first go to her niece, Catherine Jones, since deceased, for her life, and after her decease to the person or persons next in remainder under the trusts of the will, in the same manner as if the person so refusing were dead. Lucy was twice married, and neither she nor either of her husbands ever took the name of Jones : — Held,, that the gift being in fee simple, and there being necessarily no person entitled in remainder, the name clause was void, and that there had conse- quently been no forfeiture by Lucy. Broolie, In re, Musgrave v. Broohe, 26 Ch. D. 792 ; 54 L. J., Ch. 102 ; 33 W. R. 211— Pearson, J. ii. Forfeiture of Estate and Interest. a. Non-Residonoe. What Amounts to Residence.] — Testator devised a messuage and hereditaments in the country to the use of his son G. for life, " provided as a sine qu^ non " that he " within six calendar months after my decease shall enter upon and take actual possession of " the messuage and hereditaments '■ as and for his residence and place of abode ; " and " shall as such tenant for life thereafter during his life continue to reside in or upon the same capital messuage for at least six calendar months (but not necessarily con- secutively) in every year." After G.'s death, " or his failing to take such possession as afore- said and to reside in " the house, testator devised 2075 WILL — Construction. 2076 the same to G.'s first and other sons in tail male. G. entered and took possession within six months after the testator's decease ; but as to residence, during the year following the expiration of the six months, he was in the house for eighteen days only ; and from the 1st of January to the 28th of December in the year following the date of such expiration, for no more than twenty-four days. He had, however, placed the house in charge of a staff of servants, he had paid the rates, he had kept horses and poultry in the stables and on the grounds, and his son, who was at a college near, had stayed at the house ori an average on every alternate Saturday till Monday : — Held, that no forfeiture of G.'s life estate had taken place. Moii; In re, Wai-Twr v. Moir, 25 Oh. D. 605 ; 53 L. J., Ch. 474 ; 50 L. T. 10 ; 32 W. R. 377— V.-C. B. Effect of Settled Land Act, 1883, s. 51.]— A condition in a will or settlement requiring a tenant for life to reside on settled laud is not absolutely avoided by s. 51 of the Settled Laud Act, 1882, but only when it interferes with the actual exercise by the tenant for life of his powers under the act. Where, therefore, such a -condition had been broken by a tenant for life before any question of exercising the powers given by the act had arisen : — Held, that the interest of the tenant for life was forfeited. Pagefs Settled Estates, In re (30 Ch. D. 161) explained. Haynes, In re, Kemp v. Hayaes, 37 Ch. D. 806 ; 57 L. J., Ch. 519 ; 58 L. T. 14 ; 36 W. E. 321— North, J. A principal mansion house was devised to A. for life and' other limitations with a condition of forfeiture on non-residence in selling of, or letting the same : — Held, that the condition of forfeiture was void for the purposes of the Settled Land Act, 1882, and the court autho- rised a temporary letting to be made. Thomp- son's Will, In re, 21 L. E., Jr. 109— M. E. P. devised an estate to the use of his sou F. H. so long as he should continue to reside in the testator's present dwelling-house, or upon some part of the said estate for a period of not less than three calendar months in each year after he should become entitled to the actual possession thereof. And after the death of the said F. H., provided he should have complied with and ful- filled the above condition, to such uses for the benefit of all or any of his children as the said F. H. should by will appoint, and in default of such appointment, or if the said P. H. should fail in compliance with the above condition, then from the determination of F. H.'s estate to the use of trustees upon trust to sell and hold the proceeds upon trust for the children of F. H. as therein mentioned, and in default of children for other persons. F. H. took out a summons for the opinion of the court whether under this devise he had the powers of a tenan t for life under the Settled Land Act ; whether tlie con- dition of residence was void under s. 51 of the Settled Land Act, 1882 ; and for the sanction of the court to selling the mansion-house : — Held, that the condition of residence was one tending to induce the tenant for life not to exercise the powers under the act, and was therefore void under s. 51, and that the sale of the mansion- house ought to be sanctioned. Pagefs Settled Estate, In re, 30 Ch. D. 161 ; 55 L. J., Ch. 42 ; 53 L. T. 90 ; 33 W. B. 898— Pearson, J. p. Nameand Arms Clause. ■ - Validity— Disentailing Deed, Effect of.]— A testatrix devised her real estate in strict settle- ment, the will containing an ordinary name and arms clause. And she bequeathed personal estate to trustees, in trust for the person or persons who for the time being should by virtue of the will be beneficially entitled to the real estate, for such or the like estates or interests, to the intent that the personal estate should go along with the real estate, so far as the nature of the per- sonal estate and the rules of law and equity would permit. And the testatrix directed that the name and arms clause relating to the real estate should not affect the personal estate, but in lieu thereof she directed (inter alia) that if any person, being a male, who should be entitled under any of the limitations of the will to any absolute beneficial interest in possession by purchase in the pei'sonal estate should refuse or neglect to assume, use, and bear the name and arms of C. within the period therein mentioned, provided such period should expire within twenty-one years next after the death of the survivor of three persons named, or should after having assumed the name and arms, dis- continue to use and bear the same, or either of them, for six months at any time within the period of twenty-one years, then and in any of such cases, and from time to time, the estate and interest of the person so refusing, or neglecting, or discontinuing, in. the personal estate should absolutely cease, and the personal estate should from time to time go over to the person or persons who would have been entitled to the real estate under the limitations of the will in case the party whose estate should so cease, being tenant for life of the real estate, were dead, or, being tenant in tail of the real estate, were dead without issue, for such or the like estates or interests as such person or persons would have been entitled to in the real estate. Within the proper time after the death of the testatrix the first tenant for life under the will assumed the name and arms of C.,and continued to use them until his death. The plaintiff was his first son and the first tenant in tail of the real estate under the will. After he had attained twenty-one he executed a disentailing deed of the real estate and limited it to himself in fee simple. He then claimed to be indefeasibly entitled in possession to the personal estate : — Held, that the forfeiture clause relating to the personal estate was valid, and- that the effect of it was to make the interest of the tenant in tail, in case it should be forfeited, go over to the person who would have been entitled to the real estate under the limitations of the will in case the tenant in tail had been dead without issue, and no disentailing deed had been executed t — Held, therefore, that the plaintiff was not inde- feasibly entitled to the personal estate ; but that his interest was liable to forfeiture in case within the period of twenty-one years he should discon- tinue to use the name and arms of C. Corn- wallis, In re, Cornwallis v. Wyheham,- Martin, 32 Ch. D. 388 ; 55 L. J., Ch. 716 ; 54 L. T. 844 — Pearson, J. Compliance with— Licence of College of Arms.] — -A. name and arms clause contained a proviso that in case the devisee should " refuse or neglect within one year to take, use, and bear the sur- 2077 WI LL — Construction. 2078 name " of A., or should at any time afterwards ■•' discontinue to use and bear such surname or arms," then, and in every such case immediately after the expiration of a year, or immediately .after such discontinuance, the devise should de- termine and become void. The devisee assumed the surname, and also used his best endeavours to comply with the direction as to the arms, but failed to obtain a grant from the Herald's College of the right to use the identical arms msed by A. : — Held, that the estate of the devisee had not been divested by the failure to obtain a ■grant of the identical arms used by A. Semble, that a name and arms clause requires a taking of arms by a proper grant from a proper au- thority (namely, the College of Arms), and is not satisfied by a mere voluntary assumption of a coat of arms. Austen v. Collins, 54 L. T. 903 — Chitty, J. 7. Bankruptcy, etc. Fut-ore Event.]^The testator directed that if iihe annuitant should become banlirupt or in- solvent he should forfeit the annuity : — Semble, such a direction applies only to future events, and no forfeiture would be incurred by an ia- solvency incurred during the testator's lifetime. Draper's Tmsts, In re, 57 L. J., Ch. 942 ; 58 1. T. 942 ; 36 W. E. 783— Kekewich, J. Annulment.] — A testator gave his residuary Teal and personal estate to trustees upon trust, to pay one-third of the rents and proceeds to his son until he should die or become banlcrupt, or assign, charge, or incumber, or attempt to assign, charge, or incumber the same or any part thereof, or do something whereby the same or some part thereof would by operation of law or otherwise if belonging absolutely to him become vested in, or payable to, some other person or persons, with a gift over on the failure or determination of the trust. Shortly before the death of the testator insolvency proceedings were instituted against the sou in Melbourne where he was living, and trustees of his estate were appointed, who gave notice to the trustees of the testator's will to pay over to them any sums in their hands to which the bankrupt was entitled. The insol- vency proceedings were very shortly afterwards annulled, and it appeared that the insolvency trustees had not received anything from the trustees of the will : — ^Held, that, notwithstand- ing the annulment of the insolvency proceed- ings, the clause of forfeiture had taken efEect. BrmightoUj In re, Peat v. Broughton, 57 L. T. 8 — Chitty, J. Effect of Words " do or suffer" — ^Eegistratlon of Judgment.]— Under a will, the rents and profits of certain lands were made payable to M. for life, or until he should become bankrupt, or assign, convey, charge, or incumber the same, " or do or suffer something, whereby the same, or some part thereof would, by operation of law or otherwise, if belonging absolutely to him, become vested in or laeoome payable to some other person or persons." A judgment creditor of M. registered his judgment as a mortgage against the lands : — Held, that, under the words ■" do or suffer something," a forfeiture had occurred of M.'s life interest in the lands. Moore's Estate, In re, 17 L. E., Ir, 549 — Flanagan, J. Felony — " Operation of Law" — Act to abolish Forfeitures.] — A testatrix, by her will, dated in July, 1869, devised and bequeathed all her real and personal estate to T. K. in trust for her sister M. C. for life, and after her decease upon trust to pay to or permit H. D. C. to receive the interest for his life, but if he should become bankrupt, or publicly insolvent, or should com- pound with his creditors, or should assign or incumber his interest under the trust, or any part thereof, or should otherwise by his own act, or by operation of law, be deprived of the absolute personal enjoyment of the same interest, or any part thereof, then, and in either of such cases, the trust in favour of H. C. D. should be void, and T. K, should thenceforth apply the interest for the maintenance, education and support of the children of H. C. D. The tes- tatrix died in 1871, and M. C. died in 1881. In July, 1878, H. 0. D. was convicted of felony and sentenced to ten years' penal servitude. Before the expiration of his sentence he obtained a. ticket of leave and commenced an action for the administration of the estate of the testatrix, and claimed the arrears of interest : — Held, that he had not been deprived of the actual enjoyment of the life interest by any operation of law, and that he was entitled to all arrears of interest. Dash, In re, Darlcy v. King, 57 L. T. 219 — Chitty. J. ill. Other Conditions, Illegal Condition— Husband and Wife— Gift while living apart.] — A testator directed his trustee to pay to his sister M. "during such time as she may live apart from her husband, before my son attains the age of twenty-one years, the sum of 21. lOs. per week for her main- tenance whilst so living apart from her hus- band." M. and her husband were married some years before the date of the will, and never lived apart tiU some time after the death of the tes- tator. The testator's sou was living and an infant : — Held, that the bequest to M. was not to be construed as a gift to her during the joint lives of herseU and her husband untU the son attained twenty-one, upon a, condition, which might have been rejected as against the policy of the law, that she and her husband should not live together, but as a limited gift of weekly payments to be made during a period the com- mencement and duration of which were fixed in a way which the law does not allow, and that the gift was void. Brown v. Peek (1 Eden. 140) and Wrem v. Bradley (2 De G. & Sm. 49) con- sidered. The distinction between gifts on con- dition and gifts by way of limitation, discussed. Moore, In re, Trafford v. Maconochie, 39 Ch. D. 116 ; 57 L. J., Ch. 936 ; 59 L. T. 681 ; 37 W. K. 83— C. A. Affirming 52 J. P. 596— Kay, J. "For Services and collecting of Bents" — Collection of Eents by Agent.] — A testator gave to his trustees "for their services and collecting of rents, &o.," an annuity of 251. each. The property principally consisted of eighty houses, some let. at weekly tenancies, and the trustees employed a collector of the rents, and the chief clerk allowed the trustees in taking their accounts a sum of 80Z. paid to the collector : — Held, that the trustees were not entitled to these annuities in addition to the sum allowed for the collection of rents, and that as that allowance exceeded 2079 WILL — Constructio7i. 2080 the aggregate of the two annuities, no appor- tionment of the annuities so as to cover the trustees' services other than the collection of rents, if otherwise possible, could be made. Muffett, In re, Jones v. Mason. 56 L. J., Ch. 600 ; 56 L. T. 685 ; 51 J. P. 660— C.' A. Persons who should Establish Bight as Next of Kin within One Year,] — A testator bequeathed his residuary personal estate to such persons who should within one year from his death establish their right or title thereto as his next of kin, with a gift over in default. An order for limited administration, including an inquiry as to next of kin, was made on summons shortly after the testator's death. The persons who were next of kin did not bring in a claim within the year :^Held, that the gift over took effect. 'I'ollTier V. Marriott (4 Sim. 19) distinguished. Hartley, In re, Stedman v. Dunster. 34 Ch. D. 742; 56 L. J., Ch. 564 ; 56 L. T. 56.5'; 35 W. E. 624— North, J. Discretion of Executors as to Conduct of Legatee — Declaration of Dissatisfaction.]— A testator bequeathed to his son A. a sum of 2,000Z., if he should conduct himself to the satisfaction of the testator's executors. He also devised and bequeathed the residue of his property to his executors upon trust for the use and benefit of all his children, including his son A., in equal shares, and declared that if his son A. should not coudiict himself to the satisfaction of his execu- tors or the survivor of them, then that be should not be entitled to receive any portion of the re- siduary estate ; and in that case a declaration in writing, signed by the said executors or the sur- vivor of them, of their, her, or his dissatisfaction with him, should be conclusive evidence that he was not to receive any portion thereof : — Held, that a declaration of dissatisfaction signed by two of the executors who alone proved the will, leave having been reserved for the remaining three, was suflBcient to disentitle A. to the legacy and to a share of the residue. Belany v. Delany, 15 L. E., Ir. 55— V.-G. Provision as to Disputes on Construction of Will.] — A testator cannot, by constituting pri- vate individuals a forum domesticum to decide whatever questions may arise upon the construc- tion of his will, oust the jurisdiction of the court to determine such questions. A will, after several dispositions of the testator's property, contained the following declaration : " I have now stated my will, to the best of my ability, clearly as to the disposal of my different properties ; yet, in order to prevent disputes, 1 shall add this clause : And it is my will that all differences of opinion as to my intention shall be left to the decision of the executors, whose decision shall be final, if they agree ; and if they do not, they shall appoint an umpire, from whose judgment there shall be no appeal. Anyone resorting to law, I here cancel and annul every benefit they would otherwise have derived from this my will, and whatever they have forfeited shall bo divided by the executors among those who had acceded to their decision": — Held, that the jurisdiction of the court to decide any questions arising upon the will was not ousted by the clause attempting to confer upon the executors exclusive power to determine them. Massy v. Rogers, 11 L, E., Ir. 409— V.-C. c. Validity. i. Bemoteness. Gift at Twenty-five— Contingent Gift— Gift over.] — A testatrix by her will, dated in 1828, gave all her property to trustees upon trust, as to the interest of a sum of 5,000Z., for her sister for life ; and after the death of such sister the interest to be paid to the testatrix's daughter (she having first attained twenty-five) ; if the daughter married with the consent of the exe- cutors, and died " leaving children, the interest to be appropriated for the maintenance and education of such children," of whom the testa- trix constituted the executors guardians as to the due application of the same according to their discretion, " and the principal to be dividedl amongst them as they shall severally attain the age of twenty-five years ; " after the death of the sister, and in the event of the daughter marry- ing without consent, or marrying with consent " and dying without leaving issue," then over. The daughter survived the testatrix, attained twenty-five, and in 1842 married with the neces- sary consent. The sister died in 1854, and the daughter in 1866, having had two children, who survived her : — Held, that the gift was not void for remoteness, but that the fund vested in the children of the daughter living at her death. Sevan's Trusts, In re, 34 Ch. D. 716 ; 56 L. J., Ch. 652 ; 56 L. T. 277 ; 35 W. E. 400— Kay, J. Gift to Children of any Son of Tenant for Life — Tenant for Life past Child-bearing — Admissi- bility of Evidence.]— A testator by his will, dated September, 1866, gave all his estate to trustees upon trust to pay an annuity to his daughter (the plaintiff) for life, and on her decease he declared that they should stand pos- sessed of the residue of the trust funds in trust for such child or children of the plaintiff as had attained or should live to attain the age of twenty-one years, or (being a daughter or daughters) should have attained or should live to attain that age, or have married or marry, and also for such child or children of any son of the plaintiff who should die under the age of twenty-one, as should live to attain the age of twenty-one years, or (being a daughter or daughters) should live to attain that age or marry, and, if more than one, in equal shares and proportions as between brothers and sisters. The testator died in January, 1875, and at his death the plaintiff, who was then over sixty years of age, had one son and five daughters living :— Held, that the trust in favour of the grandchildren of the plaintiff was void for re- moteness, and that evidence was not admissible to show that at the testator's death the plaintiff was past the age of child-bearing. Jee v. Audley (1 Cox, 324) and Sayer's Trusts, In re (6 L. K., Eq. 319) followed. 'Cooper v. Laroche (17 Ch. D. 368) disregarded. Dawson, In re, Johnston v. Hill, 39 Ch. D. 155 ; 57 L. J., Ch. 1061 ; 59 L. T. 725 ; 37 W. E. 51— Chitty, J. Divisible Gift.]— The will of a testatrix con- tained an ultimate limitation of her real estate to her right heirs in case both her daughters (for whom and their husbands and issue provision had been made by the will), should die without leaving any child or the issue of any child living at the decease of the survivor of them, or of the 2081 WILL — Construction. 2082 survivor of their respective then present or any future husbands. The personal estate was be- queathed by reference on the trusts of the real estate. Neither of the daughters married again. Each died leaving her husband surviving her, but no issue : — Held, by the court below that the gift over was divisible into two distinct gifts, viz. (1) in case both the daughters should die without leaving issue living at their respec- tive deaths ; (2) in case the daughters or either of them should die leaving issue, and there should be no such issue living at the death of the survivor of the husbands of the daughters ; and that, the first event having happened, the gift over was good, though it would have been void for remoteness if the daughters had left issue ; but held, on appeal, that the gift over was not in the alternative on the happening of either of two distinct events, but a single gift over on one event involving two things ; that as the testatrix had not separated the gift the ■court could not separate it, and that therefore the gift over was void for remoteness. Harvey, III IT, Peek V. Savory, 39 Ch. D. 289 ; 60 L. X. 79— C. A. Devise of real estate to trustees in fee, upon trust for J. for life, and after his death upon trust for his children who should attain twenty- one, and the issue of any child who should die under twenty-one leaving issue who should attain that age ; but in case there should be Tio child, nor the issue of any child of J. who ■should attain twenty-one, the property was to be held on trust for the child or children of R. who should respectively attain twenty-one, if more than one, in equal shares. Provided always, that the rents of the trust premises should, during the term of twenty-one years from the day next before the day of the testator's death, be accu- mulated by way of compound interest, and the accumulated fund should be held in trust for the child, if only one, or all the children equally, if more than one, of R. who should attain twenty-one. J. died without ever having had a child. R. had six children who attained twenty- one. The youngest of them was bom after the •eldest had attained twenty-one, but before the end of the period of accumulation : — Held, that the gift over to the children of R. was divisible into two distinct alternative gifts, viz. (1) a gift over in the event of there never being any child of J.; (2) a gift over in the event of no child or issue of any child of J. attaining twenty-one ; and that consequently the first alternative was not too remote, and the gift over was in the events which had. happened good. Evers v. Cliallii (7 H. L. C. 531) explained. Stuart v. ■Cocherell (5 L. R., Ch. 713) distinguished. Wat- ,^on V. Young, 28 Ch. D. 436 ; ol L. J., Ch. 502 ; 33 W. R. 637— Pearson, J. Investment of certain Moneys — Payment to Persons named — Further Limitations.] — A tes- tatrix directed that the interest of 3,000Z., which was a charge upon certain real estates belong- ing to C, should he each year invested, and when it amounted to 5001. should be divided ■equally between A. and B., and so continued until they should have received 1,000Z. each. She further directed that if, at the time they ■should have received the last instalment, the ■estates held by C. should still be in the hands of a member of her family, and a Protestant, the Interest of the 3,000?. was still to continue to be invested, and, as it amounted to a sufficient sum, to be applied to buying up the tithe rent-charges on the esiate one by one. When the tithe rent-charges were all bought up, the 3,O0OJ. was to lapse to the owner of the estates. In the event of the said estates not being in the hands of a Protestant member of her family at the time A. and B. should have received the instal- ment, or if, during the time of buying up the rent-charges, they should cease to belong to a Protestant member of her family, the B,0O0Z. was to be divided equally between A., B., D. and E. : — Held, that the entire trust for accumula- tion was void for remoteness. Smith v. Cumng- luxme, 13 L. E., Ir. 480— V.-C. See also next case. Powers of Appointment.]— &e post, cols. 2101, 2102. 11. tTncertainty. Gift to any STiece or Female Relative of A., provided she marries a Person named B.]— A testator left all his property upon trust for A. for life, and from and after his death, to pay the same to any niece or female relative of A., provided she marries a person of the name of B., residing in the county of T., and who has been born and reared a Roman Catholic ; but the said bequest is not to vest in the niece or female relative of A. so marrying a B. until five yeara after the death of A. : — Held, to be void for remoteness, and, on appeal, to be void for uncertainty. Smitlnoicli v. Sayden, 19 L. R., Ir. 490— C. A. Crift for Hospital rendered Impossible.] — A testator, by deed-poll, duly enrolled in Chancery, conveyed to trustees a piece of land and cottages for the purpose of an hospital for ten aged or infirm poor persons, preference being given to particular parishes. By his will, made in 1882, he charged his copyhold and freehold estates with his debts and funeral expenses and legacies, and gave the residue of his personal property to the trustees of the deed-poll upon trust to build an hospital on the site of the premises conveyed by the deed-poll, and to employ the income of the remainder in insurance and repairs, and paying 18Z. or more to each of the ten poor inmates, and the ultimate balance (if any) to aged and deserving poor of either sex as out-of- door pensioners. The testator died within twelve months from the execulion of the deed- poll, which therefore became void under the Statute of Mortmain. Upon further considera- tion in an administration action : — Held, that the ultimate gift of the balance of the dividends failed for uncertainty, and that the legacies must be paid out of the proceeds of the real estate, and the debts and funeral expenses in the first instance, out of the personalty. Taylor, In re, Martin v. Freeman, 58 L. T. 538 — Kay, J. Gift of Shares in Unlimited Company snhse- queutly converted into Limited Company — Change in Value of Shares. ]^A testator be- queathed " fifty shares in the York Union Banking Company," to be held upon certain trusts. At the date of the will the company was registered and incorporated as an unlimited company under the Companies Acts, and the 3 X 2083 WILL — Construction. 2084 testator held seventy shares therein of the nominal value of lOOl. each. Between the dates of his will and his death, the company was registered as a limited company under the same style, except that the word "limited" was added, and each lOOZ. share was converted into two shares of the nominal value of 601., and 140 of these new shares were allotted to the testator in substitution for his seventy shares of 100/. each : — Held, that the bequest was not specific but general, that it was in effect a gift of such a sum as at the death of the testator should be the value of fifty shares of lOOZ. each in the unlimited company, and that as, by reason of events of which the testator was aware, it had become impossible to determine such value, the bequest failed. 6fray, In re, Dresser v. Gray, 36 Ch. D. 205 ; 56 L. J., Ch. 975 ; 57 L. T. 132 ; 35 W. E. 795— Kay, J. iii. Perpetuities. Bequest to Individuals— For the purposes of a Convent,]— Bequest of 1,000/. to S., " Superioress of the Convent of Mercy at K., to and for the purposes solely of the said convent, or to such other person as may be superioress of the said convent at my" (the testator's) "decease": — Held, that the bequest was valid as a bequest to the person who should be superioress of the convent at the testator's death, and that it was not the less so by reason of the direction to apply it solely to the purposes of the convent. CocJis V. Manners (12 L. R., Eq. 574) approved and followed. Wilkinson's Trusts, In re, 19 L. E., Ir. 531— C. A. A testatrix by her will gave a bequest of 100/. to the Marist Sisters of the Convent of C, a be- quest to M., Superioress of the St. Anne's Con- vent of Mercy, in trust for the community of the said convent, and a bequest of the residue- of real and personal estate to G., Superioress of the Convent of D., in trust for the support and maintenance of the said D. Convent. The communities consisted, at the death of the testa- trix, of a superioress and a, number of sisters, whose names were given. There was no evidence of the constitution or object of either of the convents : — Held, that the community of a convent means the persons at the time members of the convent, and that these legacies were valid bequests to the respective legatees as individuals, and, therefore, did not transgress the rule against perpetuities. Bradsliaw v. JaeTi- man, 21 L. E., Tr. 12— M. E. Tor Masses.] — The testatrix also gave a bequest of bank stock to J., Provincial of the Franciscan Missionaries of Merchant's-quayj in the city of Dublin, or to the Provincial of ' the said missionaries at the time of the testatrix's death, for the ofEering of masses for the repose of the soul of, the testatrix, &c. : — Held, that this legacy was not to or for the benefit of the Franciscan Missionaries, but to J. individually, for the offering up of masses, and as such was valid. lb. Residuary bequest, the income thereof to be divided between the two priests officiating at the time of the testator's decease, and such others who should be from time to time officiat- ing in the parish of K., in consideration of their saying masses for the repose of the testators-- soul :— Held, void. Dorrian v. Gilmore, 15 L. R., Ir. 69— V.-C. iv. Tbellusson Act. Accumulation of Income — Provision for' Raising Portions.] — ^A testator, who died in 1858, by his will, dated in that year, gave life annuities to his wife and two brothers, and directed that the income of his residuary personal estate, and the rents and profits of car- tain freehold and leasehold properties, should be accumulated during the life of his wife and brothers and the survivor ; and after the de- cease of the survivor he bequeathed his residuary personal estate and the accumulation of the in- come thereof, and of the rents and profits of the freeholds, and leaseholds, to his nephews and nieces, children of his two brothers, "the same- to be paid to them on their respectively attain- ing the age of twenty-one years." The testator gave the freeholds and leaseholds to other per- sons. The -wife and brothers survived the tes- tator, and lived for more than twenty-one years after his death. The questions were, whether the direction to accumulate was invalid as being contrary to the Thellusson Act, or whether it came within the exception contained in s. 2 of that statute. For the nephews and nieces, it was argued that, although, according to the authorities, the gift of the capital of the resi- duary personal estate, together with the accu- mulations thereof, was not a, " provision for- raising portions," -within the exception to this act, yet the gif-t of the accumulations of the rents and profits of the freeholds and leaseholds, not being accompanied by a gift of the freeholds: and leaseholds themselves, was such a provision ; and that, therefore, as to such rents and profits, the direction for accumulation was effectual : — Held, that the rents and profits, could not be severed from the aggregate fund, as a part of which they were given ; and that the direction for accumulating them was not a " provision for raising portions " within the exception, and was ineffectual beyond the twenty-one years allo-vved by the act. Walltm; In, re, Walker v. Walker,. 54 L. T. 792— Kay, J. V. To Charities— jSee Chabitt. d. Specific Bequests and Devises. Specific Bequests — What are.] — ^A specific legacy is something which a testator, identifying it by a sufficient description, and manifesting an intention that it should be enjoyed in the state and condition indicated by that description, separates in favour of a particular legatee, from the general mass of his personal estate. Motert- son V. Broadhent, 8 App. Gas. 812 ; 53 L. J., Ch. 266 ; 50 L. T. 243 ; 32 W. E. 205— H. L. (E.). By marriage settlement a vsdfe had, in the event of her dying in her husband's lifetime, a power of appointment by will over the property therein comprised, which in the event of her surviving him became hers absolutely. At the date of the wife's death the property comprised, in the marriage settlement included Consols and. 2085 'WILL—'Gonstruction, 2086 Eeduced and New Three per Cents. ; her separate property comprised Consols. By her will the wife, after reciting the settlement, gave and appointed everything she had power to dispose . of :to; trustees, and then gave a number of stock legacies in the form, " I direct my trustees to stand possessed of 1,000Z. Consols upon trust to pay the dividends to A. for life, and after his death to transfer the same sum of Consols to his children ; " and in the form, " I direct my trustees to transfer 1,500Z. Consols to B." The New Three per Cents, so given amounted to exactly, and the Eeduced Three per Cents, to very nearly, the amount of those stocks subject to the settlement. The amount of Consols so given was more than that subject tO' the settle- ment, but less than the amounts subject to the settlement and belonging to her separate estate, taken together. The will contained a residuary gift : — Held, that all the legacies were specific,, that those of New and Keduoed Three per Cents. failed, and those of Consols could only be paid pro tanto out of the Consols belonging to the; testatrix's separate estate. Tovmg, In re, Trye Y. Svllivan, 52 L. T. 754 — Pearson, J. A testator by his will directed, his executor to transfer any money that he might have in bank stock at his death into the executor's name, and pay the income to his wife for life, or until she should marry again, and if she should marry again that she should thereupon forfeit her life interest in the fund, and that the whole of the bank stock should, upon his wife's second marriage, be distributed as follows : — 1,000Z. to be retained by his said executor, and applied by him in having masses offered for the repose of testator's soul, and the residue to be distributed among such Roman Catholic charities in Dublin as his executor, in his absolute discretion, might think fit ; but if his wife did not marry again, the testator directed that at her death his execu- tor should retain a sum of 2,000Z. out of the bank stock, and apply the same as he saw fit in having such number of masses as he approved of offered up for the repose of testator's soul, and for the repose of the soul of his wife ; and that the residue of the bank stock which should remain, after providing for such masses as afore- said, should be divided in five equal parts, and paid to the treasurers of five different charitable institutions named in his will, and the testator appointed E., his executor, his residuary legatee. The testator died leaving his wife surviving. She never married again, and survived E. E. survived the testator, and died without having appHed any portions of the bank stock in having masses said ; and by his will he bequeathed all the property be derived in reversion or otherwise under the testator's will : — Held, that the gift of the residue of the bank stocks, after provid- ing for such masses, was a specific gift of the portion of bank stock remaining after taking 2,0001. out of it ; that the testator's widow not having married again, and having survived E., the gift of 2,000Z. failed, the event upon which it was given never having arisen ; and that the legacy of 2,000Z. fell into the general residue, and therefore passed to E. under the residuary bequest in the testator's will. Fee v. M'Manui, 15 L. E., Ir. 31— C. A. A testator bequeathed "fifty shares in the York Union Banking Company," to be held upon certain trusts. At the date of the will the Company was registered and incorporated as an unlimited company under the Companies Acts, and the testator held seventy shares therein of the nominal value of 1001. each. Between the dates of his will and his death, the company was registered as a limited company under the same style, except that the word " limited" was added, and each 1001. share was converted into two shares of the nominal value of 60Z.,iand 140 of these new shares were allotted to the testator in substitution for his seventy shares' of 1001. each : — Held, that the bequest was not- specific. Gray, In re. Dresser v. Gray, 36 Ch. D. 205 ; 56 L. J., Ch. 975 ; 57 L. T. 132 ; 35 W. E. 795— Kay, J. Speiiific or Demonstrative Iegaoy.]-^M. S., by her will dated in 1865, directed the trustees thereof to stand possessed of the sum of 1,500Z., then invested in the Bombay, Baroda, and Central India Eailway Company, upon trust for her brother, who had then disappeared, for life, if he should present himself to the trustees within five years after her death ; and after the five years or the decease of her brother, whichever should first happen, she bequeathed the sum of 5002., part of the Bombay, Baroda, and Central India Railway shares, to the trustees of a charity for the benefit thereof. M. S. was at the date of her will possessed of about 1,900J. in the railway, but at the date of her death in 1881 she was possessed of no property therein, and the brother had not appeared : — Held, that the legacy to the charity was a specific and not a demonstrative legacy, and that the inTestment out of which it was given having ceased to exist, the legacy was not payable to the charity out of the testatrix's general estate. Sayer, In re, Me Clellan v. Clarh, 53 L. J., Ch. 832 ; 50 L. T. 616— Pearson, J. Specific legacy or Besiduary Beqnest.] — A testator by his will, after directing his exe- cutors to pay all his just debts arid funeral and testamentary expenses, and giving pecuniary legacies- to individuals and to charities, gave all his personal estate and effects of which he should die possessed, and which should not consist of money or securities for money, to E. A. R. absolutely. And he gave and devised all the rest, residue, and remainder of his estate, both real and personal, to his executors upon certain trusts ; all the legacies to be free of legacy duty ; the legacies for charitable purposes to be paid excliisively out of such part of his personal estate as might lawfully be appropriated to such purposes and preferably to any other payment thereout : — Held, that the legacy to B. A. R. was not specific, and not exempt from the payment of the pecuniary legacies. Motertson v. Sroad- bent, supra. Specific Devise — After-acquired Freeholds.] — A testator, by a codicil executed in 1867, devised to the defendant " all those three freehold cottages . . . and premises thereunto belonging which I have lately purchased." At that date he owned, as tenant in common with his brother, a share in a piece of garden-land adjoining one of the cottages, which he occupied as his resi- dence from 1870 until his death in 1883. In 1875 the testator's brother devised to him his share in the garden-land, which the testator thenceforward occupied with his residence: — Held, that the garden-land did not pass under the devise in the codicil. Cave v. Harris, 57 L. 3x2 2087 WILL — Construction. 2088 J., Ch. 62; 57 L. T. 768; 36 W, E. 182— Kekewich, J. Subsequent Contract to Purchase.] — A. devised to G. for life, " my cottage and all my land at S.," subject to the stipulation (among others) that the plantations, heather, and furze be all preserved " in their present state," and devised "all other my freehold manor, messuages, lands, and real estate whatsoever and whereso- ever" to trustees upon trust for sale. At the date of his will A. had a small cottage with twenty-two acres of rough land held with it, and he subsequently contracted to purchase from 6. a house of considerable size with gardens and land comprising ten acres closely adjoining the cottage and land. The contract was not com- pleted at his death : — Held, that a contrary intention within the meaning of the 24th section of the Wills Act was not shown with sufficient clearness, but that, construing the will as if it had been made on the day of the testator's death, having regard to the circumstances at that date, and to the residuary devise, the specific devise more aptly referred to the cottage and rough land, and did not carry the after-acquired pro- perty. Portal and Lanib, In re, 30 Ch. D. 50 ; 54 L. J., Ch. 1012 ; 53 L. T. 650 ; 33 W. E. 859 — C. A. The words " all my land at S." would, if used alone, have been sufficient to carry the after- acquired land with the house standing upon it ; but upon the authority of Ewer v. Hay den (Cro. Eliz. 476, 658), by force of the context the word "land" must be taken as confined to lands in contradistinction from buildings. li. Effect of s. 24 of Wills Act.]— Semble, per Lindley, L.J. :— S. 24 of the Wills Act, which provides that a will shall speak as to the real and personal estate comprised in it (i.e., the will) from the day of the testator's death, leaves open the question whether a particular property passes by the specific or the residuary devise. Ib_ Ademption of,] — See infra. e. Ademption and Satisfaction. i. Ademption. Parol Evidence.] — Parol evidence and de- clarations of the testator contemporaneous, or subsequent, are admissible to rebut or to confirm the legal presumption of ademption, but they must be directed to the very transaction relied on as an ademption. Griffith v. Bourhe, 21 L. E,, Ir, 92— M, E, Stranger or Person in Parental Belation.] — Difference of the legal presumption where the legacy and gift are by a stranger, and where they are by one standing in a parental relation, n. Moral Obligation other than Parental.] — The doctrine of ademption of legacies founded on parental or quasi-parental relation applies also to cases where a moral obligation other than parental or quasi-parental is recognised in the will, though without reference to any special application of the money. Polloelt., In re, Pollock V. Worrall, 28 Ch. D. 552 ; 54 L. J., Ch. 489 ; 52 L. T. 718— C. A. A testatrix by her will bequeathed to a niece of her deceased husband 5001. with these words, " according to the wish of my late beloved hus- band," and she afterwards in her lifetime paid 3001. to such legatee, with a contemporaneous entry in her diary that such payment was a " legacy from " the legatee's " uncle John " : — Held, that the presumption was that such legacy was adeemed to the extent of SOOl., and that such presumption of ademption pro tanto only was not displaced by evidence that more than a year before the 300Z. was given the testatrix had said that the legatee, when asked by the testatrix whether she would rather receive 3001. down than a larger sum after the testatrix's death, had replied that she would prefer 3001. down. lb. Legacy to Priest — Gift to Archbishop for same Purpose.] — Legacy to the parish priest of the parish K., for the erection of a new chapel in the town C. : — Held, adeemed by the gift of a like sum, for the same purpose, to the Eoman Catholic Archbishop of the diocese by the testator in his lifetime. Oriffith v. Sourlte, supra. Will speaking from the Date — Contrary In- tention.] — J. made his will, dated the 6th March, 1879, and thereby bequeathed all his real and personal estate to his executors, in trust to pay certain legacies which he set forth. The will then proceeds as follows : — "And inasmuch as my property almost exclusively consists of United States securities, which are to be redeemed by that Government at specified times, my will is that they be not disposed of or realised until they are redeemed by the said Government, I direct that in case I shall die before the time for such redemption shall arrive of the said securities, the interest to accnie due thereon shall be divided equally " between certain chari- ties which the testator specified. At the date of the will the testator's property consisted of two United States 5-20 bonds of 1869 loan for 1,000 dollars each, four bonds of the same loan for 500 dollars each, and three bonds of the United States 6 per cent., 1861, loan for 1,000 dollars each. Shortly after the date of the will he sold these bonds, and purchased in lieu of them four United States bonds for 1,000 dollars each, and one bond of the Victoria Government for 5001. The testator died on the 11th May, 1883, the last-mentioned securities being then in his pos- session : — Held, that the bequest to the charities was adeemed. Murphy v. Cheevers, 17 L, E., Ir. 205-V.-C. legacy of Share in Settled Fund — Specific Gift.] —A testatrix by her will, after directing the payment of her debts, and giving certain legacies, gave a sum of 7,500^., " which I believe is left under uncle Price's will to me," in various legacies to several persons. At the date of her will she was entitled in reversion to shares in two sums of 25,000Z.and 2O,OO0Z., which together amounted to 7,500Z. under her uncle's will and a settlement which contained the usual power to change investments made by him. When the reversion fell into possession the testatrix re- ceived the money representing her share, which she invested and the investments could be 2089 WILL — Construction, 2090 traced :— Held, that the gift of the 7,500Z. was not adeemed, but was effectual so far as the funds representing the shares of the testatrix under her uncle's will and settlement could be traced. Xemyon's Estate, In re, Maim v. Knapp, 56 L. T. 626— Chitty, J. Specifio Bequest — Charge on Estate.] — A testator, by his will dated the 23rd June, 1869, after reciting that he was entitled as against the M. estates to the sum of 7,9C6Z. lis. id., being the amount ascertained to be paid by him in his character of executor of the late E. H. E., in discharge of the residue of liabilities to which the inheritance in the M. estates was liable, bequeathed to his son W. the sum of 7,966Z. UsAd., or such other sum as he might be entitled to raise off the M. estates. The testator was tenant for life of the M. estates, with remainder to W. in tail male. By deed, dated the 9th day of July, 1875, the M. estates, and also the B. estates, of which the testator was tenant for life, with remainder to W. in tail, were re-settled. This deed recited that, upon the winding-up of the testamentary estate of R. H. £. (under whose will the M. estates were limited), an account was settled between the several devisees of the respective estates of K. H. B., with a, view to ascertain their liability, and that the testator had been ascertained to be entitled to stand against the M. estate for the sum of 8,329Z. Os. 2d., and that it had been agreed that the said sum of 8,329Z. Os. 2d. should be charged on the inherit- ance of the said several estates ; and by the said deed the M. estates and the B. estates were granted to trustees for five hundred years, in trust to raise the sum of 8,329Z. Os. 2d., and pay the same as the testator should appoint : — Held, that there was no ademption of the bequest to W. of the charge on the estates. Longfield v. Bantry, 15 L. K., Ir. 101— V.-C. "All my interest in C. Estate" — Sale before Testator's Death.] — Testator devised "all my interest in the C. estate " after the death of his vrif e, to M. Previously to his death the C. estate was sold and the proceeds of sale paid into court. The money was then paid out to the testator, and part of it was paid into a deposit account and part into his current account with other moneys : — Held, that there was an ademption of the C. estate, and that nothing passed to M. ClarTt v. Brovm (2 Sm. & G. 524) not followed. Moore V. Moore (29 Beav. 496) distinguished. Manton V. Taiois, 30 Ch. D. 92 ; 54 L. J., Ch. 1008 ; 53 L. T. 289 ; 33 W. E. 832— V.-C. B. Bequest of Business — Double Portions.] — A tes- tator bequeathed the residue of his estate (includ- ing a bufiness which he directed to be sold) for the benefit of his children equally. He had two sons and three daughters. Subsequently to the date of his will he assigned the business to his eldest son on trusts, which provided for the admission of the younger son as partner on equal terms with the elder on attaining full age, the repay- ment with interest to the father of a sum tem- porarily employed by him in the business, and the paymentto the father of a weekly sum of Wl. for life : — Held, that the shares of the sons in the residue were adeemed to the extent of the value of the property assigned on trust for them at the time of the assignment, and must be brought into account in the distribution of residue. Vickers, In re, Viokers v. VicJiers, 37 Ch. D. 525 ; 57 L. J., Ch. 738 | 58 L. T. 920 ; 36 W. E. 545— North, J. u. Satisfaction. Contemporaneous Deed and Will.] — The circumstance that two documents are contempo- raneous, so that both are present to the mind of the donor when he executes each of them, is a strong reason against holding a gift in one to be a satisfaction of an obligation under the other to pay a like sum. Horloch v. Wigging, 39 Ch. D. 142 ; 58 L. J., Ch. 46 ;' 59 L. T. 710— C. A. By a separation deed, dated the 7th September, 1844, the husband covenanted that his executors or administrators should on his decease pay to his wife, if she survived him, lOOZ. ; with a proviso that if &l. per month was paid her for six months from his death, the balance should only be paid at the end of that period. By his will, dated the 5th day of September, 1844, but alleged to have been signed on the 9th, " after all my just debts, funeral and testamentary expenses are paid, I bequeath to my wife lOOZ. payable within six months after my decease, 6Z. to be paid to her or her order until my estate is finally settled, and the same to be deducted from the said lOOZ. as per indenture stated in our mutual separation" : — Held, that the legacy was not in satisfaction of the sum covenanted by the deed to be paid, but that the widow was entitled to both sums. lb. Double Portions.] — ^A father on the marriage of his second son, by deed of settlement cove- nanted to pay him an annuity of 1 ,0002. a year for life, and to charge the annuity on a sufficient part of the real estate he might die seised of ; provided that nothing in the settlement should prevent his dealing with his real estate during his life, or, so only that sufficient real estate were left charged with the annuity, by will. The father subsequently made his will by which he devised his real estate (subject to the charges and incumbrances thereon) in strict settlement on his first and other sons iu tail male ; he bequeathed the greater part of his personal estate among his children, giving his second son legacies the income of which when invested would be considerably more than 1,OOOZ. a year. He died leaving three sons :— Held (Fry, L.J., dissentiente), that the words " subject to the charges and incumbrances thereon," were too general to rebut the presumption against double portions, and that the second son was not entitled both to the annuity and to the bequests under the will. The doctrine of double portions dis- cussed. Montague v. Sandwich (^MarV), 32 Ch. D. 525 ; 55 L. J., Ch. 925 ; 54 L. T. 502— C. A. Legacy — Portion in Settlement.] — A., by marriage settlement, granted certain lands to trustees, to raise the sum of 3,000?. for the children of the marriage in such shares as A. should appoint, and in default of appointment equally among them. A. had three sons and six daughters. The power of appointment was never exercised. A. by will bequeathed his residuary estate, which realised a clear fund, exceeding what his daughters would have been entitled to under the settlement upon trust, 2091 WILL — Construction. 2092 after the death of his wife (to whom he gave the interest thereon for life for the maintenance of his daughters), to pay each of his daughters one-sixth of the interest while unmarried, and a like share of the principal on marriage with consent, with a gift over to the survivors of the share of any daughter dying unmarried : — Held, that the provisions made by the will operated as a satisfaction of the portions given to the daughters by the settlement. Sattersby's Estate, In re, 19 L. B., Ir. 359— Monroe, J. Legacy — Debt.] — A testator bequeathed hia wife a legacy of 625Z. He then owed her that exact amount. The debt was paid ofE in his lifetime :— Held, that the sUm was not payable as a legacy, Metolier, III, re, drillings v. Fleteker, 38 Ch. D. 373 ; 57 L. J., Ch. 1032 ; 59 L. T. 313; 36 W. E. 841— North, J. A testator bequeathed 250Z. to his son, and directed that his debts of every kind, including specialty debts, should be paid out of his personal estate : — Held, that the legacy was not a satis- faction of a debt of 92Z. due by the testator to his son for business advances on a current account, BiwMey v. SucMey, 19 L. E., Ir. 644 — M. K. Policy subject to Payment of Debts— Testator's lunacy — Payment by Committee.] — A testator bequeathed a policy on his own life on trust to pay two debts due from him, and to pay the balance of the money to be received on the policy if any, to his daughter J. The testator paid off one debt ; he became lunatic ; ■ his committee paid off the other debt : — Held, that J. was en- titled to the money received on the policy, less the debt paid by the committee. LarMng, In re, Larhing v. LarMng, 37 Ch, D. 310 ; 67 L. J., Ch, 282— North, J. direct during my lifetime." The testatrix verbally informed A, that she wished to leave " something to J,, and something to the Lord's; work," and suggested C. and D. as persons to, whom she proposed to give the last-mentioned bequest. After the testatrix's death A. found a letter in her handwriting, which, after reciting the bequest in the will of the 200Z., proceeded as follows: — " I would ask you to give or send lOOZ. to J. ; the second hundred I wish sent for the Lord's work, 50Z. to C. and 50Z. to D. ; I would ask them to lay it out : " — Held, that no valid trust was created affecting any portion of the 200Z. KiTig's Estate, In re, 21 L. E., Ir. 273— Monroe, J. Admissibility of Evidence to show Exist- ence.] — A testator who died in Jan., 1885, by his will dated in Dec, 1884, bequeathed to Ms friends A. and B. the sum of 500Z. free of legacy duty to be raised and be paid out of his pure personalty, " relying, but not by way of trust, upon their applying the said sum in or towards the object or objects privately communicated to them" by him. The executors objected to pay over the bequest, on the ground that there was a secret trust, and that such trust appeared to be an illegal one. The legatee accordingly applied to the court to order payment of the legacy. The executors tendered affidavits to show that the bequest was upon a trust. The legatees objected that the court could not go beyond the terms of the will : — Held, that the evidence was admissible. Mussell v. JacTison (10 Hare, 204) followed. Spencer's Will, In re, 57 L, T. 519—0. A. /. Tktistb. i. Secret Trusts. Communication of Object of Trust to Trustee.] — A. B. instructed his solicitor to prepare for him a will leaving all his property to the solicitor himself absolutely, but to be held and disposed of by him according to written directions to be subsequently given, and a will was prepared and executed accordingly, under which the solicitor was universal legatee and sole executor. No such directions were, however, given to the solicitor by the testator in his lifetime, but after his death an unattested paper was found by which the testator stated his wish that X. Y. should have all his property except a small sum of money which he gave to the solicitor. The solicitor claimed no beneficial interest in the testator's property except to the extent of his legacy, and claimed to hold the rest of the property as trustee for X. T. :— Held, that as the testator had not in his own lifetime communicated to the solicitor the, object of the trust no valid trust in favour of X. Y. had, been constituted, and accord- ingly th^t , the ■ solicitor held the property as trustee tox, the next of kin of the testator. Eoyes, ifi re, JBoyes v. Carritt, 26 Ch. B. 531 ; 53 L. J., Ch. 654; 60 L. T. 581 ; 32 W, E, 630— Kay, J. ., Bequest of 200?,-to A. ^nd B. " to spend as I " (the t^statjrix) " sh^all, by wprji of .mouth, ii. Resulting' Trusts. In what Cases.] — By an agreement between H, and E. certain shares in a limited bank, which were the property of H., but standing in the names of H. and E., were to be held for H. for life, with remainder to E. for life, -with remainder to such charities as H. should by will appoint. H. died in 1878, having appointed the shares among certain charities, subject to E.'s life interest. E. died in 1884. A wiuding- lip order having been made against the bank, the executors of both H. and E. were informed that a call would be made against them on the shares. All the charities had disclaimed. The executor of E. brought an action against H.'s executors, one of whom was also H.'s residuary legatee, claiming ' indemnity in respect of the liability on the shares : — Held, that, on the dis- claimer by the charities, there was a resulting trust of the shares in favour of H.'s estate, and that H.'s residuary legatee was bound to in- demnify E.'s executor. Hoihs v. Wayet, 36 Ch. D. 256 ; 57 L, T. 225 ; 36 W. E. 278— Keke- wich, J. A testator's vrill contained the following clause : — I give and bequeath to my brotther E. whatsoever real estate I may die possessed of, wheresoever situate, on i trust nevertheless to pay thereout the sum of 800Z. duefrom me to; the trustees under the marriage' settlement of S., and the sum of 3002. due from me to B., and also on trust to pay to each of my sisters M. and C. and to my brother A., as long as they respect tively live,' the sum ot.Wl. everv- year.'!; 'Thie •2093' WILL — Construction. 2094 ■will contained a bequest of the personalty to E. and A. and certain of his sisters, and appointed B. executor thereof :^-Held, that the word " thereout " and the words " and also on trust " were sufBoient to show that the gift to E. was not for the purposes thereafter expressed, but ■only subject to such trusts as were expressed. Mling v. iJeraisoB (1 V. & B. 261) explained. Croome T. Oroome, 59 L. T. 582— C. A. Affirmed 87 L. T. Jour. 201— H. L. (B.). Acceleration of Interests.] — See ante, col. 2062. iii. Precatory Trusts. General Rule of Construction.] — The doctrine ■of precatory trusts is not to be extended, and, in considering whether precatory words create a trust, the court will not look only to particular •expressions, but see whether on the whole will the testator's intention was to create a trust, ■and regard will be had to any embarrassment and difficulty which would arise from a trust. JDiggles, In re, Gregory v. Mdmondson, infra. "In full confidence she will do what is light."] — A testator gave and devised all his real and personal estate unto and to the absolute use of his wife, her heirs, executors, adminis- trators, and assigns " in full confidence that she will do what is right as to the disposal thereof, tetween my children, either in her lifetime or ty will after her decease " : — Held, that under these words the widow took an absolute interest in the property unfettered by any trust in favour of the children. Lambe v. Eames (6 L. E., Ch. 597), Hutchinson and Tenant, In re (8 Ch. D. 540), Ournick v. Tucker (17 L. R., Eq. 320), and Le Marcliant v. Le Marcliant (18 L. E., Bq. 444) commented on. Adams and Kensington Vestry, In re, 27 Ch. D. 394 ; 54 L. J., Ch. 87 ; 51 L. T. 382 ; 32 W. E. 883— C. A. " They are hereby enjoined."] — Bequest as ioUows : " I give to my brother, in trust for my sisters, M., C, and H., 4,000Z., ... on con- dition that they will support M. M. ; at the ■demise of either or any of the above, the sur- vivors or survivor to receive the increased income produced thereby. They are hereby enjoined to take care of my nephew J., as may seem best in the future " : — Held, that the sisters took abso- lutely as joint tenants ; and that there was no precatory or other trust in favour of the nephew. Moore, In re, Moore v. RooTie, 55 L. J., Ch. 418 ; 54 L. T. 231 ; 34 W. E. 343— Kay, J. "It is my desire that she allows."] — A testatrix gave all her property real and personal to her daughter, " her heirs and assigns ; and it is my desire that she allows to A. G. an annuity of 25/. during her life, and that A. G. shall, if she desire' it, have the use of such portions of my household furniture as may not be required by my daughter." The datighter and her husband were appointed executors : — Held, that no trust or obligation to pay the annuity was imposed upon the daughter, but that there was only a request to the daughter, not binding her in law, to make that provision for A. G. Biggies, In re, Gregory T. Mdmondson, 39 Ch. D. 253 ; 59 L. T. 884— C. A. "In order that she might provide for."]— A testator left all his property to his wife, in trust for the uses thereafter mentioned. He then be- queathed certain pecuniary legacies, and stated, that it was his will that his youngest son P. should live and reside witb tis mother, and be attentive to her, and directed by her in order that she might by deed or by her last will and testament provide for him in such a manner as to her might seem most expedient and proper j and he appointed and nominated his said wife his residuary legatee and trustee of his, will, in, order that she might direct and govern his ;Said' children and assist to arrange all matters between them ; and previous to her death — provided that she did not marry again — that she might dispose of the residue of his property to and amongst his said children and provide for his son P. as she might think expedient ; and he directed that if she married again she should cease to be trustee, and receive the sum of lOOZ. only ; and that in such case his son E. should act as trustee in her stead. He nominated his son E. and his wife executor and executrix : — Held, that the tes- tator's wife took the residue absolutely, and that there was no precatory trust in favour of P. Morrin v. Morrin, 19 L. E., Ir. 37— V.-C. g. An-NUITY. Whether for Life or Perpetual.] — A testator, being the lessor of the lands of B., which were held under him by a lease for lives, renewable for ever, at a yearly rent of 46Z., made a wiU containing the following dispositions relating to these lands : "I hereby give and bequeath unto my three daughters " [naming them] " two years' profit rent to each out of B., that is to say, 60Z. to each, to be paid as the rent becomes due after my decease ; I order that, in case any of my daughters should die before they corbie to the age of twenty-one years, her part Should be divided between the surviving daughters above mentioned. I also will and bequeath unto my six sons " [naming them] " all my interest in M. Farm and T. farm, and 5Z. per annum to each out of B. after my daughters are paid off." Upon the argument of a demurrer, it not .ex- pressly appearing from the pleadings whether _ the lessor was liable to any or what head-rent in' respect of B. : — Held, that the annuities of 5Z. each to the testator's sons were not perpetual annuities, but were for the lives of the anfluitants only. Whitten v. Hanlon, 15 L. E., Ir. 298 — Ex. D. Bight of Annuitant to have Annuity secured.] —The testator gave all his real an4- personal estate to his son, upon trust to pay thereout weekly and every week to the testator's wife during her life the sum of 11. Ws., and, subject thereto, upon trust for his said son absolutely. The testator had been dead four years,, and the weekly payment had been regularly made during all that period. The widow now asked that its future payment should be secured by the sale qf the property and the investment of the proceeds. The estate consisted substantially of a leasehold public-house, and the business carried on there, and the total amount, of it, if realised, would not have been equal to the amount of the capir talised value of the annuity :■ — Held, that the property was given to the son absolutely, subject only to the payment of the aiinuity, andso long as he paid that, he was , entitled to , tl?e quiet- 2095 WILL — Construction. 2096 possession of his property, and the widow was not entitled to have it sold. Fatter, In re, Potter V. Putter, 50 L. T. 8— V.-C. B. Gift in Eeversion — Direction to Purchase — Death of Annuitant — Failure of Gift,] — A tes- tator, having an absolute power of disposition over a fund subject to the interest of a tenant for life, directed that at the death of the tenant for life, 1,000Z. of the fund should be invested in the purchase of a life annuity for the benefit of D., and that in the event of insolvency or aliena- tion by D., the annuity fund should fall into residue, and he gave his residuary estate to the aforesaid tenant for life. The annuitant pre- deceased the tenant for life : — Held, that the gift of the annuity fund failed, and the fund fell into the residue. Power v. jlayne (8 L. H., Eq. 262) followed. Bay v. Day (1 Drew. 569) not followed. Draper's Trusts, In re, 57 L. J., Ch. 942 ; 58 L. T. 942 ; 36 W. B. 783— Kekevrich, J. Charge on Leaseholds or Beal Estate.] — See post, col. 2114. h. PowEES 01' Appointment. 1. Instruments by which Exercised. Intention to exercise Power — Residuary Gift.] — A marriage settlement made in 1840 reserved to the husband a general power of appointment by will " expressly referring to this power or the subject thereof." By his will (not referring to the power) he gave the residue of his property to trustees on certain trusts differing from those declared by the settlement in default of appointment : — Held, that the power was exercised by the will. In ascer- taining whether a testator has shown an inten- tion not to exercise by a residuary gift a general power of appointment reserved to him by a settlement made by himself the will only can be looked at. Marsh, In re, Mason v. Thome, 38 Ch. D. 630 ; 57 L. J., Ch. 639 ; 59 L. T. 595 ; 37 W. E. 10— North, J. A testator, who had under a settlement a power of appointment over leasehold and other personal estate among his children or grandchildren or other issue, by his will, which contained no reference to the power, gave " all the real and personal estate and effects whatsoever, and wheresoever, whether in possession, reversion, remainder, or expectancy, over which at the time of my decease I shall have any beneficial disposing power by this my will" to trustees, upon trusts partly for persons who were objects of the power, and partly in excess of the power : — Held, that the use of the word "beneficial" did not conclusively show that the testator could not have intended to exercise a power which he could not exercise for his own benefit or the benefit of his estate. Amss v. Cadogan (12 Ch. D. 868) discussed. Von BrocMorff v. Malcolm, 30 Ch. D. 172 ; 55 L. J., Ch. 121 ; 53 L. T. 263 ; 33 W. B. 934— Pearson, J. There being, in the opinion of the court, upon the will taken as a whole, a sufficient indication of an intention to exercise the power : — Held, that the power was exercised by the will, the trusts, so far as they were in excess of the power, being inoperative. IT), Share and Interest in Colliery Company.] — A testator having, under a settlement, a power of appointment over two freehold estates, B. and S., and over one-fourth share in a colliery company, by his will, which contained no reference to the power, devised to one son " all my freehold estates at B." and to another son " my estate known as S.," and also bequeathed " all my shares and interest in the above- mentioned and two other colliery companies" to his three daughters. He had no estate of his own at B. and S. besides the settled estates, but he had a share in each of the three colliery com- panies, besides the share comprised in the settle- ment : — Held, that the bequest of all his shares and interest in the colliery companies operated as an appointment of the settled share, as the manner in which he had exercised his power over the estates of B. and S. showed that he intended to exercise his power over the settled share by the bequest of all his shares and interest in the colliery companies. Wait, In re, Worlman v. Petgrave, 30 Ch. D. 617 ; 54 L. J., Ch. 1172 ; 53 L. T. 336 ; 33 W. E. 930— Pear- son, J. Over Eeal Estate — Testator having no other Realty.] — The question whether, since the Wills Act, a special power of appointing real estate is exercised by a general devise, where the testator had neither at the date of his will nor of his death any real, estate of his own, is one of intention to be inferred from the words of the will and from the surrounding circumstances at the date of it, particularly the enlarged! operation given by the act to a general devise. A testator making a mere general devise, though having no real estate of his own, does not thereby sufficiently indicate an intention of exercising a special power of appointing real estate, notwithstanding that the objects of the power happen to be included among the de- visees. Mills, In re. Mills v. Mills, 34 Ch. D. 186 ; 56 L. J., Ch. 118 ; 55 L. T. 665 ; 35 W. E. 133— Kay, J. Exercise of Power up to Specified Amount.] — ^A testator b'y his will, dated in 1884, after giving his residuary real and personal estate upon certain trusts for the benefit of his widow and his daughter and the daughter's children, empowered his widow by will to appoint that any sum or sums of money not exceeding 20,000Z. should after her death be raised and applied as she should think fit. The widow by her will dated in 1885, devised and bequeathed all her estate and effects real and personal which she might die possessed of or entitled to unto her daughter absolutely : — Held,, that by force of the 27th section of the Wills Act, the general devise and bequest in the widow's will operated as an exercise to the extent of 2O,O00Z. of the power of appointment contained in the will of the testator. Jones, In re, Greene v. Gordon, 34 Ch. D. 65 ; 56 L. J., Ch. 58 ; 55 L. T. 597 ; 35 W. K. 74— Kay, J. Power created after Will.] — A testa- trix, who had a general power of appointment over the A. property, by her will in 1854 after specific devises and bequests devised and be- queathed the residue of her estate to X. By a deed-poll in 1855 she appointed the A. property upon such trusts as she by deed or her last will 2097 WILL — Construction. 2098 " should from time to time or at any time there- after direct or appoint," and in default of appointment upon trust for Y. The testatrix died in 1857 :— Held, that reading together ss. 24 and 27 of the Wills Act, 1837 (7 Will. 4 & 1 Vict. c. 26), the will operated as an exercise of the power given or reserved by the subsequent deed-poll and passed the property to X. Boyes V. Cooh (14 Ch. D. 53) approved. Semble, that the case also fell within s. 23 of the Wills Act, and with the same result. Airey v. Bower, 12 App. Cas. 263 ; 56 L. J., Ch. 742 ; 56 L. T. 409; 35 W. R. 657— H. L. (E.). See also Hernando, In re, post, col. 2105. P., a married woman, made a will the day after her marriage in the following terms : " In pursuance and exercise of the power of appoint- ment, vested in me by the settlement executed previously to my mai-riage, and of every other power enabling me, I hereby appoint, give, and bequeath all the property settled by me on my marriage, and over which I have any disposing power, unto my dear husband." After the execution of the will, but in the lifetime of P., O. died, having by will bequeathed lOOZ. East Indian Eailway Annuities in trust for P. for life, with remainder as she should by will appoint, with remainders over: — Held, that P.'s vrill was not confined to the property comprised in her marriage settlement, but operated to exercise the power given her by the vrill of 0. Old's Trusts, la re, PengeUey v. Herbert, 54 L. T. 677 — Pearson, J. Bevocation — Valid Appointment in Will — Invalid Appointment by Codicil.] — Testator by will, who said his estate would realise at least 10,0002., wished 4,000?. to be invested on trust for his sister, A. P., for her life. At her death the principal might be divided between her husband, if surviving, and children as she might by will determine. After giving other legacies, the testator bequeathed the remainder to the children of J. F. A sum of 4,000Z. was invested in Consols and transferred into court. A. P. by will gave all the residue of her property, includ- ing the sum of 4,000Z. left to her by the testator, and over which she had a disposing power, to her husband and children in equal terms. One son after the date of the will died, leaving two children, and by a codicil made afterwards, A. P. bequeathed the share which would have gone to him in trust for his children. On petition by the husband and surviving children for sale of the trust fund and payment of the proceeds to them : — Held, that the invalid appointment by the codicil did not operate as a revocation pro tanto of the gift by the will to the class, and that the husband and surviving children were entitled to the whole of the fund. Bnguid v. Fraser, 31 Ch. D. 449 ; 55 L. J., Ch. 285 ; 54 L. T. 70 ; 34 W. R. 267 — Kay, J. See also KirwaiCs Trusts, In re, infra. Will of Wife during Coverture — General Siaposition by Will, after Death of Husband.] — A married woman, having in a settlement a special power of appointment by will over real estate, executed a will during coverture in 1866 appointing the same. After the death of her husband she made three other wills. In the first and second she said : " I revoke all other wills," and in the third : " I . . . hereby revoke all wills, codicils, and other testamentary disposi- tions heretofore made by me, and declare this to be my last will and testament," and then dis- posed of all her estate, " including as well real estate as personal estate over which [ have or shall have a general power of appointment,'' but she did not in any way exercise or affect to exercise the power in the settlement, nor did she refer to it, or to the property the subject of the power : — Held, that the testamentary appoint- ment of 1866 was revoked. Kingdon, In re, WilUns V. Pryer, 32 Ch. D. 604 ; 55 L. J., Ch. 598 ; 54 L. T. 753 ; 34 W. R. 634— Kay, J. Testamentary Appointment — Residuary Bequest. ] — A testator executed a " testamentary appointment " under a general power. A month later he executed a will containing a residuary bequest, and not referring to the testamentary appointment : — Held, that the will operated as an execution of the power, and revocation of the testamentary appointment. Gibbes' Settle- ment, In re, Wliite v. Handolf, 37 Ch. D. 143 ; 57 L. J., Ch. 757 ; 58 L. T. 11 ; 36 W. E. 429— North, J. Besiduary Gift — Appointment to Persons not Objects.] — A testatrix having a testamentary power of appointment over a trust fund in favour of her children only, purported by her will to appoint to three of her children, including F. and B., one-fourth each, and the remaining fourth to a grandchild, not an object of the power ; and "all the rest, residue, and remainder of my personal estate and effects whatsoever and wheresoever, and of what nature or kind soever, and over which I have any power of disposal by this my will, I give and bequeath the same unto and equally between my said sons F. and B. share and share alike " : — Held, that the residuary gift operated as an appointment to F. and B. of the one-fourth badly appointed to the grand- child. Hunfs Trusts, In re, 31 Ch. D. 308 ; 5.> L. J., Ch. 280 ; 54 L. T. 69 ; 34 W. E. 247— V.-C. B. A testatrix had, under the will of a brother who had predeceased her, a power to appoint his property by will among his nephews and nieces, and the cluldreu or child of deceased nephews and nieces. She, by her will, gave all the real and personal estate of which she might be seised or possessed at the time of her death, or over which she might have any testamentary power of disposition, to trustees, upon trust for sale and conversion, and to stand possessed of the pro- ceeds (which she described as " my said trust funds") upon trust to pay costs and expenses, and to pay her debts and funeral expenses and certain pecuniary legacies, and then upon trust as to two one-fourth parts of her trust funds respectively for persons who were objects of the power ; and upon trust as to the other two one- fourth parts respectively for persons who were not objects of the power. And she declared that, in case of the failure of the trusts therein- before declared of any of the one-fourth parts oi: her trust funds, the one-fourth part, or so much thereof of which the trust should fail, should be held upon the trusts thereinbefore declared of the others or other of the fourth parts of which the trusts should not fail : — Held, that the testatrix had manifested an intention to exercise the power, and that as to one moiety of the brother's property the power was well exercised. 2099 WILL — Construction. 2100 Held, also, that as to the other moiety of the brother's property the appointment was invalid, but that by virtue of the gift " in case of the failure of any of the trusts thereinbefore de- clared," that moiety went to the persons to whom the first moiety was well appointed, and that, consequently, no case of election arose. Swiniurne. In, re, Swinlurne v. Pitt, 27 Ch. D. 696 ; 54 L. J., Ch. 229 ; 33 W. B. 394— Pear- :son, J. By Will or Deed,]— P., by his will, devised an •estate at K. to his daughter H. for life, and directed that H. should not have any power to mortgage, «eU, or give it away during the term of her natural life, but at her decease she- might give it to whom she pleased. By a post-nuptial settle- ment H. and her husband settled the K. estate in trust for all their children equally. After- wards H., by her will, appointed the K. estate to her only child for life, with remainder to his children : — Held, that H. had only a testamen- tary power of appointment over the K. estate, and that she could not dispose of the estate by deed during her life. Flower, In re, Edmonds V. Edmonds, 55 L. J., Ch. 200 ; 53 L. T. 717 ; 34 "W. E. 149— North, J. A testator gave by will the whole of his property to his three nieces during their joint and several lives, and added, "In leaving my property to my three nieces it Is my wish that if my grandnephew J. conducts himself to their satisfaction, they shall leave him the property I now leave them " : — Held, that the power could only be exercised by will. Moore v. Ffolliot, 19 L. B., Ir. 499— M. B. Unattested Codicil— Deed.] — A holograph co- dicil not duly attested was admitted to probate under 24 & 25 Vict. c. 114 :— Held, that though xidmitted to probate, the codicil was invalid as a testamentary exercise of a power of appointment, sections 9 and 10 of the Wills Act not being repealed by 24 & 25 Vict. c. 114 :— Held, also, that the codicil could not be treated as a defec- tive attempt to execute a power by deed which the court would aid. Mrwan's Trusts, In re, infra. ii. Praud on Power. Bargain to Settle the appointed Property.] — Eeal estate was vested in trustees under a will, upon trust as to one moiety to pay the rents to A. for life, and after his death to convey it to and among his children who should attain twenty-one, and if he had no such child then on the trusts of the other moiety, and as to the other moiety on similar trusts for B. and his •children. The will empowered the trustees if they should think fit, to convey the shares of A. ^ud B., or either of them, to them in fee. In 1882, A. and B., the younger of whom was of the age of sixty-two, and neither of whom had any child, having incumbered their interests, and being pressed by their mortgagees, applied to the trustees to exercise their power of giving them their shares of the estate in fee. An arrangement was made between A. and B. and the trustees that the trustees should, in exercise of their power, convey the estate to A. and B. , as tenants in common in fee, and that, subject to such mortgages aa should be approved by the trustees for raising money to pay off the existing mortgages, a part of the property should be settled upon trusts which gave A. and B. respectively powers of appointment in favour of their respective children and remoter issue, and powers of jointuring their wives. The trustees accordingly conveyed to A. and B., as tenants in common in fee, and the re-settlement, which vested the equity of redemption in new trustees, with a power of sale, upon the trusts which had been arranged, was made by a deed which re- cited that the trustees had exercised the power on condition that the settlement should be made : — Held, that looking at all the circum- stances of the case, it was not shown that the bargain for the re-settl nment induced the appointment, or that if the bargain had not been entered into the appointment would not have been made, and that the appointment and settle- ment were therefore valid, and that the trustees of the settlement could' make a good title. Turner's Settled Estates, In, re, 28 Ch. D. 205 ; 54 L. J., Ch. 690 ; 52 L. T. 70 ; 33 W. B. 265— C. A. A tenant for life, having power to charge settled estates with a jointure of 2001. a year in favour of a wife, executed a deed appointing the full amount, but, as the court found upon the evidence, upon a bargain and with the sole purpose that 60Z. should be paid each year out of the jointure to a third person, and the deed was executed as an escrow to be delivered to the jointress upon her securing the 60Z. annuity, which condition she had not fulfilled : — Held, that the appointment was invalid as being a fraud upon the persons entitled to the settled property in remainder after the death of the tenant for life. Wlielan v. Palmer, 39 Ch. D. 648 ; 57 L. J., Ch. 784 ; 58 L. T. 987 ; 36 W. E. 587 — Eekewich, J. The donee of a power of appointment amongst his children, exerciseable by deed or will, having one son and one daughter, by will in 1862 made a valid appointment to the daughter of the whole fund subject to the power. By a French settle- ment; not under seal, made in 1866, upon the marriage of his daughter, he purported to appoint the whole fund to her, reserving to himself the power of disposing of a life interest in a portion of the fund in favour of his second wife ; and by a holograph codicil, dated in 1871, made in France, and unattested, after reciting an arrangement made when Ms daughter was mar- ried between himself, his daughter and her intended husband, that such second wife should have such provision, he in effect appointed that if his daughter and her husband should carry out this arrangement they should have the whole of the fund. This codicil was admitted to probate under 24 & 25 Vict. c. 114 :— Held, that though admitted to probate, the codicil was invalid as a testamentary exercise of the. power, and did not revoke the appointment by will, that the appointments by the settlement and codicil were frauds upon the power, and that the arrangements made by the settlement and codicil involved a threat to revoke the will if they were not carried into effect, and that con- sequently the will, being an ambulatory instru- ment, was vitiated and became a fraud, upon the power, although at the date of its execution it was not open to objection. Xirwan's. Trusts, In re, 25 Ch. D. 373 ; 52 L. J., Ch. 952 ; 49 L. T. 292. J 32 W. E. 581— Kay, J. . iJlOl WILL — Construction. 2102 iii. To what Persons. Bemainder to Next-of-Kin. j — An appointment to an object of a power for life with remainder to his next-of-kin wUl take effect if at the death ■of the tenant for life his next-of-kin are objects ■of the power. Coulman, In re, Munby v. Ross, ■30 Ch. D. 186 ; 55 L. J., Ch. 34 j 53 L. T. 560— Pearson, J. Trustees for Benefit of Son.] — Property was -assigned to trustees on trust for S. for life, and after her death to such of her issue as she should by will appoint. S. by her will appointed the property to two trustees in trust to pay the income to her son : — Held, that S. had power to ■appoint the property to trustees for her son. Scotney v. Lomer, 29 Ch. D. 535 ; 54 L. J., Ch. 558 ; 52 L. T. 747 ; 33 W. E. 633— Korth, J. Child leaving Issue — Lapse — ^Wills Act, s. 33. ] — The 33rd section of the WUls Act, which enacts that a devise or bequest to a child of the testator who dies in the lifetime of the testator leaving issue shall not lapse, does not apply to an appointment under a special f ower. Freme v. Clement (18 Ch. D. 499) dis- approved. Solyland v. Lewin, 26 Ch. D. 266 ; 53 L. J., Ch. 530 ; 51 L. T. 14 ; 32 W. E. 443— C. A. "Issue," Meaning of.] — The word "issue" may bear different interpretations in different parts of the same deed, and it is not an inflexible rule that, because the word evidently means ■" children," in the proper sense of the term, in one part of a settlement, it must be neces- sarily so construed in another part of the document. Warren's Trusts. In re, 26 Ch. D. 208 ; 53 L. J., Ch. 787 ; 50 L.' T. 454 ; 32 W. R. 641 — Pearson, J. To Issue — Gift over in Default of Appoint- ment to " such Issue."] — The testatrix gave all her property to trustees, upon trust to pay the income to such child or children of hers as should survive her during their lives, in equal shares if niore than one, and in case of the death of any of her children in her lifetime or afterwards she directed that the issue of such child, or any one or more of them, should take his, her, or their parent's share in such shares and proportions as his, her, or their parent should by will appoint ; " in default of such appoint- ment such issue to take equally as tenants in common." The testatrix had several children, all of whom survived her, and two of whom afterwards died without exercising the power and having had children, some of whom pre- deceased their respective parents : — Held, that the words " such issue " meant all the issue of children of the testatrix to whom an appoint- ment might have been made, and therefore that all the grandchildren of the testatrix were entitled to share whether they had survived their respective parents or not. HivtoMnson, In re, Alexander v. Jolley, 55 L. J., Ch. 574 ; 54 L. T. 527— Kay, J. Eemoteness — Time how Calculated.] — A married woman exercised a general testamentary power : — Held, that time under the rule against perpetuities lan from her death, and not from the date of the instrument creating the power. Powell's Trusts, In re (39 L. J., Ch. 188), dis- cussed and not followed. Sous v. Jackson, 29 Ch. D. 521 ; 54 L. J., Ch. 732 ; 52 L. T. 733 ; 33 W. E. 773— Chitty, J. A testator devised an estate to his daughter for life, with a power of appointment to be exercised by her by will ; she appointed to her only child for life with remainder to the child's children : — Held, that time under the rule against perpetuities ran from the date of the daughter's death, and not from the date of the testator's will conferring the power. Mous v. Jaolison (29 Ch. D. 521) followed. Powell's Tnsts, In re (39 L. J., Ch. 188), disapproved.; Flower, In re, Fdmunds v. Edmonds, 55 L. J., Ch. 200 ; 53 L. T. 717 : 34 W. E. 149— North, J. A testator, who had under a settlement a power of appointment over leasehold and other personal estate among his children or grand- children or other issue, by his will, gave a moiety of the property on trust for his daughters who should survive him, and attain twenty-four, in equal shares. The testator's youngest daughter was more than three years old at the time of his death : — -Held, that the appointment was not void for remoteness. Von BrocMorff v. Malcolm, 30 Ch. D. 172 ; 55 L. J., Ch. 121 ; 53 L. T. 263 ; 33 W. E. 934— Pearson, J. By an ante^nuptial settlement, dated 1834, to which the wife (an infant) was party, her parents agreed, and the husband covenanted, that the husband and wife would, on her attaining twenty-one, convey her real estate to the uses of the settlement. In 1836 the wife, having attained twenty-one, by deed duly acknowledged, in which the husband concurred, granted the real estate to the uses of the settle- ment : — Held, for the purpose of testing the validity of the exercise of a power, with reference to the rule against perpetuity, that the real estate was settled in 1834. Cooke v. Cooke, infra. Severable Proviso.] — A marriage settlement gave the intended husband and wife power by deed or the survivor by deed or will, to appoint among children. The husband sur- vived, and by will appointed the settled property among his three daughters equally, with a proviso that if at the time of his death any of them should be unmarried, her share should be held on trust for her for life, and after her decease, in case she should die leaving issue, as she should appoint, and in default of appointment, or in case she should not leave, issue, on corresponding trusts in favour of his other children : — Held, that the trusts of the proviso were inseparable and totally void for remoteness, and that the absolute gift in favour of a daughter unmarried at the death of the testator prevailed. CooUe v. Cooke, 38 Ch. D. 202 : 59 L. T. 693 ; 36 W. E. 756— North, J. iv. Estate by Implication in Default. A testator left to his three nieces, M., E.-, and E., the entirety of his property of every kind whatsoever during their joint and several lives, but subject to legacies, and added — "In leaving my property to my three nieces and co-heirs ifr is my wish that if my grand-nephew J. conduct* himself to their satisfaction they shall leave him 2103 WILL — Construction, 210^ the property I now leave to them." J. died in the lifetime of two of the nieces, M. and E., who both died intestate :— Held, that J., if he had survived all the tenants for life, would have taken an estate by implication in default of appointment, but not having survived them that there was an intestacy as to the real estate, which descended to the heir of the testator. The decisions on simple powers of appointment, powers coupled with a trust and gifts by impli- cation in default of appointment distinguished and reviewed. Moore v. FfolUot, 19 L. K., Ir. 499— M. R. Leaseholds were assigned to trustees upon trust, after the decease of the survivor of A., and B. his wife, to assign the same unto and amongst such of the children of the said A., and B. his wife, then living, in such manner, shares, times, and proportions as the said A., and B. his wife, jointly, or the survivor of them separately, should by any writing appoint, and in case there should be no such child or children, then upon trust for C. for life, and after his decease upon trust to assign the same unto and amongst such of his children, and in such manner, shares, times, and proportions, as he should by any writing appoint. A. and B. died without issue, B. in 1876, A. in March, 1880. C. died in 1863, having had ten children, of whom some prede- ceased him, and some died between his death and the death of A., and the rest survived A. : — Held, that all the children of C. took, as tenants in common, in equal shai-es. Wilson v. Dugmid, 2i Ch. D. 244 ; 53 L. J., Ch. 52 ; 49 L. T. 124 ; 31 W. E. 945-Chitty, J. A power given by will to a tenant for life to appoint to his children, with an express limi- tation over " in default of such appointment," cannot be construed as conferring upon the children any estate or interest in default of the exercise of the power of appointment, at least in the absence of provisions extending the opera- tion of the power. Jefferys' Trusts, In re (14 L. B., Eq. 136), dissented from as to this point, by Lord Esher, M.R. Bradley v. Cartwright (2 L. R., C. P. 511) explained and distinguished, by Cotton, L. J. Rioliardson v. Harrison, 16 Q. B. D. 85 ; 55 L. J., Q. B. 58 ; 54 L. T. 456— C. A. V. Other Matters relating to. Donee's Intention to make Property her Own.] — A testatrix exercised a general power of ap- pointment, and appointed an executor, who was the sole trustee of the property : — Held, upon the construction of the will, that she had not made the property the subject of the power her own for all purposes, and that the gift over in default of appointment took effect. The ap- pointment of an executor is not sufficient evi- dence of intention to make the property the subject of the power assets for all purposes. Thurston, In re, Thurston v. Evans, 32 Ch. D. 508 ; 55 L. J., Ch. 564 ; 54 L. T. 833 ; 84 W. B. 528— Chitty, J. Donee unaware of Power.] — A married woman being (although unaware of it) the donee of a general power of appointment by deed or will over policy moneys payable upon her own death, concurred with her husband in settling certain family estates by an indenture which treated the policy moneys as the husband's own property, and settled them also. Her concurrence in the settlement was for a purpose entirely un- connected with the policy moneys, and under it she took a life interest in remainder, after her husband's death, in the estates, but no interest in the policy moneys. She survived her husband, received in respect of her life interest in the- estates sums exceeding the amount of the policy moneys, and died, having by her will given all property over which she had any disposing power to certain beneficiaries : —Held, that by her will she had exercised her general power so- as to make the policy moneys her own assets ; and that, having taken under the settlement benefits exceeding the value of the policy moneys,, she could not by the exercise of her power take the policy moneys out of the settlement, with- out making good to the settlement beneficiaries, an equal amount from her own estate ; and accordingly that the policy moneys must be paid to the settlement trustees. 6riffith-Bos- cawen v. Scott, 26 Ch. D. 358 ; 53 L. J.i Ch. 571 ; 50 L. T. 386 ; 32 W. R. 580— Kay, J. Semble, the concurrence of the donee of the power in the deed of settlement, for purposes unconnected with the policy moneys subject to the power, and in ignorance of its existence, could not operate as an exercise of the power,, although the deed purported to pass the policy moneys. Ih. Subject to Charge.] — R., having a testamentary- power to appoint land to his male issue in such shares and proportions as he should direct^ devised certain of the lands to his eldest son, J. (who survived him), " to be chargeable with 2,000?. borrowed for J.'s sole use," and which R. in a subsequent part of his will stated that he had paid. B. by his will gave benefits out o£ his own property to all the objects of the power, and directed that certain portions of his estates should be sold or charged as by his will provided, and the proceeds applied, together with the 2,000Z. borrowed for his son J., and which he stated he had paid, to form a fund for payment of his debts and legacies : — Held, that the devise to J., subject to the 2,000Z. was not the case of. a gift absolute, with a superadded attempt to modify it, within the principle of Carver v. Bowles (2 Buss. & Myl. 301), but the gift of a certain portion only of the interest in the lands, the deduction of the 2,000?. charge being neces- sarily incorporated with the gift, and that, therefore, J. took the lands subject to the charge of 2,000?. White v. White (22 Ch. D. 555) followed. Xmo v. King, 13 L. E., Ir. 531 — V.-C. By what Law governed.]— On the 20th of De- cember, 1881, prior to the marriage (solemnized in England) of a domiciled Englishwoman (a widow) with a domiciled Spaniard, real estate in England of the intended wife was vested by her in a trustee in fee, to such uses as the intended wife should by deed or will appoint, and, subject thereto, to the use of the intended wife, for her separate use. The settlement was made with the approbation of the intended husband, and the deed contained a statement that this approbation, was given in consideration of a renunciation the same day executed by the intended wife of any rights which she would otherwise have acquired by her marriage in respect of the property of the intended husband according to the law of Spain. •2105 WILL — Construction. 2106 The deed also contained a declaration that it was to take effect and be construed according to the law of England. The marriage was solemnized ■on the next day. On the 23rd of February, 1882, the wife (being then domiciled in Spain) executed a deed-poll, in accordance with the proyisions of the settlement, whereby she, in -exercise of the power given to her by the settle- ment, appointed the real estate to the use of herself in fee for her separate use. By another ■deed executed the same day, to which the hus- band was a party, she, with the consent of the husband, appointed and conveyed, and the hus- band conveyed, the real estate to the use of a trustee in fee, upon trust for sale, and out of the proceeds of sale to pay certain specified debts, .and, subject thereto, in trust for such person or persons as the wife " shall at any time or times •hereafter by any writing or writings from time to time appoint," and in default of any appoint- ment and subject thereto, in trust for the wife -absolutely for her separate use. Under this deed the trustee sold the property, and out of the pro- ceeds of sale paid the specified debts, and there then remained a surplus in his hands. The wife died in June, 1882, having by a will executed immediately after her marriage, and which pur- ported to be made in exercise of the powers reserved to her by her marriage settlement, and of all other powers enabling her, directed, appointed and declared that the real and per- sonal estate over which she had any disposing power at the time of her death should be held and applied in the payment of certain legacies .and annuities, and, subject thereto, she gave four-fifths of her real and personal estate, in case she should leave no children, to her husband absolutely ; and she gave the remaining one- "fif th of her property, charged with the before- mentioned annuities and legacies, to her brothers ■and sisters, or to the children per stirpes of such of them as should die before her leaving chil- -dren. The testatrix died without issue. The husband survived her. According to the law of Spain, under such circumstances, two-thirds of her property belonged to her father and mother, notwithstanding that she had left a will : — Held, that whether the will was or was not a good exercise of the power reserved by the deed of February, 1882, it was a valid testamentary dis- position by vii-tue of the limitation in default of •appointment to the separate use of the testatrix ; that it took effect according to English law, and that the legatees named in it (including the husband) were entitled to the benefits given to them by it. Sernando, In re, Hernando v. Sawtell, 27 Ch. D. 284 ; 53 L. J., Ch. 865 ; 51 L. T. 117 ; 33 W. E. 252— Pearson, J. Semble, that on the authority of Boyes v. CooTt (14 Ch. D. 53) the will was a valid exercise ■of the power of appointment given by the deed ■of February, 1882. lb. Future Gift of Eesidue — Power to grant Jointure.] — A testatrix, by her will, after re- ■citing that she was entitled under the marriage settlement of her granddaughter to a fund, subject to the life interest of A., gave all her "reversionary interest" in the fund to trustees, upon trust, on the determination of the interest of A., to stand possessed thereof upon the like trusts, and with the same powers, so far as applicable, for any issue of A. by any future wife as were declared in the settlement for any issue of A. by his late wife, the testatrix's said granddaughter. And the testatrix declared that A. might by will or codicil appoint that the income of the fund should be paid to any future wife of his during her life or for any less period, and that, in default of issue attaining a vested interest, the fund should be held upon trust for A. absolutely : and the testatrix gave the residue o£ her property in trust to A. absolutely. By a codicil, the testatrix, in lieu of the trusts in her will as to residuary estate, declared that the trustees should pay the income thereof to B. for life, and after his death should hold the same upon the like trusts in favour of A. and his issue, and with the same powers in all respects as were contained in her will with reference to her reversionary interest under the settlement, and as i£ the same were repeated in the codicil. A. married a second wife. B. subsequently died. A. then claimed the income of the testatrix's re- siduary estate accrued since the death of B. The court decided that, although there was no express disposition of the income after A.'s death during the remainder of his life, such income would nevertheless belong to the parties who might eventually become entitled to the corpus, since a future gift of residue carried with it previous income not expressly disposed of, and that it must therefore be accumulated for the possible children of A. by his then marriage, who might attain a vested interest therein. Shortly after- wards A. appointed the income of the testatrix's residuary estate to his wife for life : — Held, that the power given by the will to appoint to a wife was in the nature of a power to grant a jointure, that the power given by the codicil with regard to the residue was of the same nature ; and that therefore the appointment would only take effect after A.'s death. Lindo, In re, Asian v. Ferguson, 59 L. T. 462— Kay, J. Testamentary Expenses — Probate and legacy Duty — Payment out of what Fund.] — Testatrix, in exercise of a general power of appointment, made several appointments of (in each case) " so much and such part of " the said trust funds as should be of the "clear" value of a specified sum of money in each case, and lastly made an appointment of " all the residue " of the said trust funds. The will disposed of no other property except that subject to the power, and contained no direction for payment of testamentary expenses, probate or legacy duty : — Held, that the testamentary expenses and probate duty, and the legacy duty on the specified portions of the trust funds, must be paid out of that part of the trust funds which was lastly appointed as residue. Currie, In re, Bjorkman v. Kimierley (Lord'), 57 L. J., Ch. 743 ; 59 L. T. 200 ; 36 W. R. 752— Kay, J. i. Election. Doctrine of Compensation.] — The engrafted doctrine of compensation does not apply to the case of a person electing to take under the in- strument which gives rise to the election. Wilson V. Toionshend (Lord') (2 Ves. 693), dis- cussed and not followed. OhesluMn (JLord), In re. Cavendish v. Dacre, 31 Ch. D. 466 ; 55 L. J., Ch. 401 ; 54 L. T. 154 ; 34 W. E. 321— Chitty,J. 2107 WILL — Construction, 2108 Bequest of Heirlooms in disregard of Settlement.] — A testator, who died in 1882, by his will dated in 1878, gave certain chattels upon trust for sale, for the benefit of his two younger sons, and the residue of his estate to his eldest son, C. The chattels so bequeathed by the will were, in fact, heirlooms settled by a deed dated in 1877, upon trust to go a,nd be held with a certain mansion-house, of which C. was tenant for life : — Held, upon the ques- tions whether G. having elected to take under the will, was or was not put to his election between the benefits given to him by the will and the chattels which were bequeathed by the same will, and whether he ought not to make compensation to his younger brothers, that he was not bound to make any compensation out of his legacy to his younger brothers, that he had no interest in the chattels apart from the mansion-house, which he could make over for their benefit, and that no case of election arose, li. Stock belonging to Wife in Joint Names V — Bequest by Hnsbandof Life Interest to Wife.] — A testator after making certain bequests, and giving his wife a legacy of 3,0001., gave all the residue of his estate and efEects, "including therein the money in my banking account in the Bank of England, and money in the public funds, and whether standing in my name alone, or jointly with my said wife," and all his shares and interest in any public company, and other efEects, to his wife for her life, and after her decease to other persons. At the date of the will, and at the time of the testator's death, there was only one sum (viz., 7,1101. Consols) standing in the joint names of himself and his wife. This stock had by a previous will been bequeathed to the wife, subject to two executory gifts over, which did not take effect, one in favour of her children, it any, and the other of her husband, if he survived. The stock had been received by the testator, and by him transferred into their joint names. After the testator's death his wife received the income of all the residuary estate, including the 7,110Z. Consols, but made no attempt to deal with the stock as her own property. There was, however, no evidence, to show that she knew what her rights were. She subsequently died, andher representatives claimed the stock. The, question was, whether they were bound, under the doctrine of election, to com- pensate the residuary legatees, who would be disappointed by their taking the stock, to any and what extent: — Held, that the testator in- tended the stock to pass, and was not dealing only with his right of survivorship ; that he affected to give property belonging to his wife, and consequently the doctrine of election applied both to the wife and her representatives claim- ing under her ; and that her representatives could only take the stock upon the terms of com- pensating the disappointed residuary legatees to the extent of the legacy of 3,000Z., and of the amount actually received by the wife in respect of her life interest in the testator's own pro- perty. Carpenter, In re. Carpenter v. Disney, 51 L. T. 773— Kay, J. Eevocation by Will of Settlement containing no Power of Bevooation.] — Where a testator, after making a voluntary settlement containing no power of revocation, by his will revoked, set aside, and avoided all other wills, settlements, and agreements for settlements which he had at any time theretofore made and executed: — Held,. that no case of election was raised. Booher, In re. Boohei- v. Booher, 54 L. T. 239 ; 34 W. E. 346— Chitty, J. Bequest subject to Payment of Debts — In- adequacy of Estate.] — A testator gave all hi& interest in certain leasehold farms mentioned in his will, and all the stock of every description thereon, and also all moneys due to him, to his son, subject nevertheless to the payment of all his- debts, funeral and testamentary expenses. The testator's son continued in possession and re- ceipt of the profits of the farms for about three years, when the leases of the farms and the stock thereon were disposed of. The testator's estate was very involved, and the liabilities to be dis- charged by the son, under the terms of the will, and as a condition of his accepting the bequest, greatly exceeded the value of the bequest: — Held, that the son must be deemed to have elected to accept the bequest contained in the will, subject to the payment of debts, funeral and testamentary expenses ; but he was not personally liable to pay the same. Cowley, In re, Souch v. Cowley, 53 L. T. 494 — Kay, J. Conversion^ — Trust for Sale.] — A testator de- vised and bequeathed real and personal estate to trustees in trust for his wife for life, and after her death, as to one freehold house, upon trust for one of his sons for life, as to another freehold house upon trust for his daughter for life, and as to a third freehold house upon trust for another son for life, and after their respective deaths to their issue respectively, and after the respective deaths of any without issue he directed his trustees to sell the house of such child and to pay the proceeds of sale to the survivors or the survivor of his three children, and until sale to pay the rents to the same persons or person, and he gave his residuary real and personal estate to such of his three children as should survive the widow. One of the sons predeceased the widow, a bachelor. The daughter survived her and died intestate in 1877, and all her property passed to her surviving brother as her sole next of kin. The houses- were let to weekly tenants, and the surviving son, since 1877, received all the rents. He died in 1885, and shortly before his deaths he handed the title-deeds of the houses to a solicitor, direct- ing that a gift of all his property should be made- to a niece, but he died before a conveyance could be executed. The question then arose whether the will had effected a conversion of the realty,, and, if so, whether the surviving son had elected to take the property as real estate : — Held, that there had been an out-and-out conversion, and that the son must be taken to have elected to- take the houses as real estate. Potter v, Budeney, 56L.T. 395— Chitty, J. Eeal and Personal Estate— Eeal Estate in Lease with Option to purchase Beversion. ] — A testator by his will gave his real estate and the residue of his personal estate to trustees, on trust to sell his real estate, and to convert and get in his residuary personal estate, and to stand possessed of the moneys arising from both, on trust to invest the same, and to pay the income to his wife, during her life or widowhood, and. 2109 WILL — Construction. 2110 after her death or second marriage, upon trust to divide the trust funds equally between such of his children as should be living at his death, and the issue of such of them as might be then dead. The testator died in 1869. The wife and two infant children survived him. There was no issue of any deceased child. Both the chil- dren died before the wife unmarried and intes- tate, the one who died last dying in 1876. The wife did not marry again, and she died in 1885 intestate. The only real estate of the testator was a house, of which he had in 1869 agreed to grant a lease for twenty years, with an option to the tenant to purchase the reversion at any time during the term. At the death of the widow this option had not been exercised, and the house had not been sold by the trustees. After the deaths of the children the widow continued in receipt of the rent of the house : — Held, that, by reason of the tenant's option to purchase the house, the widow's continued receipt of the rent was no evidence of an election by her to take the property as real estate, and that on her death it descended as personalty to her next of kin. Gordon, In re (6 Ch. D. 531), distinguished. Zeivis, In re, Foxwell v. Levm, 30 Ch. D. 654 ; 55 L. J., Ch. 232 ; 53 L. T. 387 ; 34 "W. E. ISO- Pearson, J. Invalid Devise of land — Beciuest of Shares.] — A married woman who was entitled to some shares in a colliery for life, for her separate use, with a power of appointment by will, and also to real estate in fee simple not for her separate use, by her will, made in February, 1880, appointed the shares in favour of her heir and other chil- dren, and purported to devise the real estate away from the heir. She ■ died in June, 1880, leaving her husband surviving : — Held, that the will being void as to the real estate, the heir was not put to his election as between the real estate and his interest in the colliery. De Surgh Lawson, In re, De Burgh Lawson v. De Burgh Lawsm, 55 L. J., Ch. 46 ; 53 L. T. 522 ; 34 W. R. 39— Kay, J. Power of Appointment — Exercise of — Non- existent Power.] — A testatrix entitled for life to property which in case of her death without issue (an event which happened) went over to her brothers and sisters, of whom J. was one, by her will, purporting to exercise a power, which she erroneously supposed herself to possess, appointed the property to a class consisting of certain named persons referred to in the will as objects of the power, of whom J. was not one, and by a codicil gave to J. certain property over which she had a free power of disposal : — Held, that J. was put to his election whether he would take under or against the will. Broohabanh, In re, Beauclerh v. James, 34 Ch. D. 160 ; 56 L. J., Ch. 82 ; 55 L. T. 593 ; 35 W. E. 101— Kay, J. E., having a testamentary power to appoint land to his male issue in such shares and propor- tions as he should direct, devised certain of the lands to his eldest son, J. (who survived him), "to be chargeable with 2,000Z. borrowed for J.'s sole use," and which E. in a subsequent part of his will stated that he had paid. E. by his will gave benefits out of his own property to all the objects of the power, and directed that certain portions of his estates should be sold or charged as by his vrill provided, and the proceeds applied, together vsdth the 2,000Z. borrowed for his son J., and which he stated he had paid, to form a fund for payment of his debts and legacies: — Held, that the chai-ge of 2,000Z. not being well appointed, a case of election arose between the objects of the power and the persons entitled to the general fund of which E. intended that the 2,000Z. should be part. King v. King, 13 L. E., Ir. 531— V.-C. A testatrix had, under the will of a brother who had predeceased her, a power to appoint his property by will among his nephews and nieces, and the children or child of deceased nephews and nieces. She, by her will, gave all the real and personal estate of which she might be seised or possessed at the time of her death, or over which she might have any testa- mentary power of disposition, to trustees, upon trust for sale and conversion, and to stand possessed of the proceeds (which she described as " my said trust funds ") upon trust to pay costs and expenses, and to pay her debts and funeral expenses and certain pecuniary legacies, and then upon trust as to two one-fourth parts of her trust funds respectively for persons who were objects of the power ; and upon trust as to the other two one-fourth parts respectively for persons who were not objects of the power. And she declared that, in case of the failure of the trusts thereinbefore declared of any of the one-fourth parts of her trust funds, the one- fourth part, or so much 'thereof of which the trust should fail, should be held upon the trusts thereinbefore declared of the others or other of the fourth parts of which the trust should not fail : — Held, that the testatrix had manifested an intention to exercise the power, and that as to one moiety of the brother's property the power was well exercised. Held, also, that as to the other moiety of the brother's property the' appointment was invalid, but that by virtue of the gift " in case of the failure of any of the trusts thereinbefore declared," that moiety went to the persons to whom the first moiety was well appointed, and that, consequently, no case of election arose. Sioiniurne, In re, Swinbwne V. PiU, 27 Ch. D. 696 ; 54 L. J., Ch. 229 ; 38 W. E. 394— Pearson, J. Onerous Property — Power of Legatee to Refuse. ] — A testator devised and bequeathed a freehold house and the furniture and effects therein on trust for A. and B. for life. The house was subject to a mortgage for more than its value : — Held, that A. and B. were entitled to the use of the furniture without keeping down the interest on the mortgagee. Syer v. Gladstone, 30 Ch. D. 614; 34 W. E. 565— Pearson, J. A testatrix gave "all my real and personal estate " to trustees " upon trust at their discre- tion to sell all such parts thereof as shall not consist of money," and out of the produce to pay her debts and funeral and testamentary expenses, and invest the residue, "and shall stand possessed of such real and personal estate, moneys, and securities " upon trust " to pay the ■ rents, interest, and dividends and annual pro- duce thereof " to T. during her life, with a clause of forfeiture on alienation, and after the decease of T. the testatrix devised and be- queathed the same to other persons. At her death she was entitled in fee to the P. estate, which was unincumbered. Some time after her death a remainder in fee to which she was 2111 WILL — Construction. 2112 entitled in the B. estate, which was subject to mortgages made by prior owners and was out o£ repair, fell into possession, and its income was only sufficient to pay the interest on the mort- gages. The trustees took out a summons for directions as to interest and repairs. The tenant for life contended that she could disclaim the B. estate : — Held, that as the P. and B. estates were not specifically mentioned, but only formed parts of one gift in general terms, T. could not accept one and refuse the other. OutliriP v. Walrond (22 Ch. D. 573), and Syer v. Gladstone <30 Ch. D. 614), distinguished. Hotelikys, In re. Frehe v. Calmady, 32 Ch. D. 408 ; 55 L. J., Ch. 546 ; 55 L. T. 110 ; 34 W. R. 569— C. A. j. Mortgages and Incumbkanobs. Realty contracted to be Purchased — Unpaid Purchase-money.] — A testator who had con- tracted to purchase real estate, and paid the •deposit money, by will made in 1881, specifically devised such real estate to his daughter for life, with remainder to her children, without showing any intention that the purchase-money should be paid out of his personal estate ; and he died without having disposed of his personal estate, which was rather less in amount than the un- paid purchase-money, and without having com- pleted the purchase or paid any further part of the purchase-money. After his death an action by the vendor against the executor and trustee of the will for specific performance of the con- tract was compromised by the defendant thereto, •and the contract was put an end to upon the terms that the vendor should retain the deposit money and have his costs ; and this compromise was confirmed by the court by an order made by consent in an administration action in the presence of the tenant for life of the real estate and the trustee, all the remaindermen being infants. Upon the further consideration of the administration action, the devisees contended that they were entitled to so much of the per- sonal estate as was equivalent to the unpaid purchase-money, upon the ground that the pur- chase was a conversion by the testator of his personal estate to that extent, and that Locke King's Acts had not altered the law in that respect : — Held, that there was a vendor's lien, and that Locke King's Acts Amendment Act applied ; that, accordingly, all the devisees were entitled to was the real estate charged with the unpaid purchase-money, and therefore on the facts to nothing ; but held, moreover, that the ■order of compromise would be fatal to their claim, if otherwise good. Coclteroft, In re, Broadlent v. Groves, 24 Ch. D. 94 ; 52 L. J., Ch. 811 ; 49 L. T. 497 ; 32 W. E. 223— Kay, J. Bec[uest of leasehold — Contract to Purchase Reversion not Completed.] — Locke King's Acts Amendment Act, 1877 (40 & 41 Vict. u. 34), s. 1, applies to leaseholds. A testator by his will, made in 1884, bequeathed to his wife the lease- hold house " in which I now reside." At the date of the will he was residing in a leasehold house. In 1887 he entered into a contract with his lessor to purchase the reversionary ground lease, but died before the purchase was com- pleted. His widow accepted the bequest : — Held, that all the testator's interest in the house passed to the widow, subject to her liability to pay the purchase-money. Kershaw, In re, Drake v. ICersliaw, 37 Ch. D. 674 ; 57 L. J., Ch. 599 ; 58 L. T. 512 ; 86 W. B. 413— North, J. "Contrary or other Intention."] — A testator directed his private debts to be paid out of the proceeds of certain life policies ; he bequeathed his residue, subject to the payment of his trade debts ; after the date of his will he deposited the title-deeds of real estate with his bankers to secure an overdrawn trade account: — Held, that this amounted to a declaration of intention con- trary to Locke King's Act and that the devisee of the real estate was entitled to have it exone- rated from the banker's lien. Flecli, In re, Colston v. Roberts, 37 Ch. D. 677 ; 57 L. J., Ch. 943 ; 58 L. T. 624 ; 36 W. R. 663— North, J. A testator, after directing the payment of his debts, devised a freehold house to his wife " absolutely, to do with as she thinks proper ; " and he requested his executors to sell and convert into money whatever freehold or other property he possessed, and to collect all debts due to him, and to apply the proceeds in the payment of certain legacies. The testator's real estate was all subject to one mortgage : — Held, that the will did not show any " contrary or other intention " within the meaning of Locke King's Act, and that consequently the \ridow took the house subject to its rateable proportion of the mortgage debt. Broicnson v. Lawrance (6 L. E., Eq. 1) dissented from. Saohville v. Smytli. (17 L. E., Eq. 153), and Gibbins v. Hyden (7 L. E., Eq. 371), followed. Smith, In re. Hanniagton v. True, 33 Ch. D. 195 ; 55 L. J., Ch. 914 ; 55 L. T. 549 ; 35 W. R. 103— North, J. Marshalling.] — A testator, seised and possessed of real and per.sonal estate, after bequeathing some pecuniary legacies (amongst others 250Z. to his son C. E.), directed by his will that his trustees should, in the first place, pay out of his personal estate all debts of every kmd, including specialty debts, in full exoneration of his real estate. He devised to his wife an an- nuity for life, and to his daughter and his five sons respsotively perpetual annuities, which he directed to be 1st, 2nd, 3rd, and 4th charges on his real estate, and two small annuities to others. He appointed his son C. E. and another trustees and executors of his will. The testator's real estate produced 660Z. a year. It was subject to two mortgages of 6,000Z. and 1,500Z. and was suflBcient to pay the annuities charged thereon by the will if the mortgages were paid out of the personal estate (8,000Z.), which was more than sufficient to pay the mortgages and other debts. But if the mortgages were primarily payable out of the real estate, and the personal estate applied in exonerating the real estate therefrom, it might not reach the legacy of 250Z. to C. E. :— Held, on the construction of the will, that the mortgages were primarily payable out of the lands mort- gaged : that the annuities were charged by the will on the real estate alone ; and also, that the application of Locke King's Act and the acts amending it did not preclude the annuitants from their equity to marshal the assets. Buchleti - "- -" 19 L. E., Ir. 544— M. R. Implied Exoneration.] — ^A testator, who died in 1874, bequeathed three leaseholds. A., B. and C, to his wife, and directed that " should there be at the time of my death any iucum- 2113 WILL — Construction. 2114 brances on C, I desire the said incumbrances to be paid off." A. and B. were subject to mort- gages at the time of his death, but C. was un- incumbered : — Held, that the above direction did not raise an implication that A. and B. were not to be exonerated out of the general estate of the testator. Brill, In re, Catty v. Snll, 49 L. T. 592 ; 31 W. K. 85-t— Kay, J. ' It. Chabge asd Payment op. i. Charge on Leaseholds and Heal Estate. What Words sufficient to Create.] — A testatrix, whose personal estate was insufficient to pay her legacies, and who had a general power of appointing real estate by her will, in 1880 " de- vised, bequeathed, and appointed all her real and personal estate, any moneys and other chattel property "to her trustees as executors thereinafter named, " subject as hereinafter." She then "gave, devised, and bequeathed" a number of pecuniary, and some specific, legacies, and "gave, devised, and bequeathed " her free- hold and leasehold estate to her two nieces, and all the rest and residue of any property " she might have at her death, subject to the payment of the legacies aforesaid " and her debts. By a codicil she revoked some of the legacies on account of the depreciation of her property : — Held, that the legacie"! were charges on the real estate. Wyirants v. Maffett. 17 L. E., Ir. 229— M. K. A father, on the marriage of his second son, by deed of settlement covenanted to pay him an annuity of 1,000Z. a year for life, and to charge • the annuity on a sufficient part of the real estate he might die seised of ; provided that nothing in the settlement should prevent his dealing with his real estate during his life, or, so only that sufficient real estate were left charged with the annuity, by will. The father subsequently made his will, by which he devised his real estate (subject to the charges and incumbrances there- on) in strict settlement on his first and other sons in tail male : — ^Held (Cotton, L. J., dis- sentiente), that the settlement operated not only as a covenant by the father, but also as a charge upon aU the real estate of which he should die seised. Montague v. Sandioicli (^EarV), 32 Ch. D. .525 ; 55 L. J., Ch. 925 ; 54 L. T. 502— C. A. A testator, by his will, made in 1882, charged his copyhold and freehold estates with his debts and funeral expenses and legacies, and gave the residue of his personal property to the trustees of the deed-poll upon trust to build an hospital on the site of premises conveyed by a deed-poll. The testator died within twelve months from the execution of the deed-poll, which therefore became Toid under the Statute of Mortmain. Upon further consideration in an administration action : — Held, that the legacies must be paid out of the proceeds of the real estate, and the debts and funeral expenses, in the first instance, out of the personalty. Taylor, In re, Martin v. Sh-eeman, 58 L. T. 538— Kay, J. A testator, after giving legacies and annuities, proceeded to say : " My executors may realise such part of my estate as they think right in their judgment to pay the aforenamed legacies " : — Held, that the legacies were not charged on the real estate, for that the direction to the executors to realise such parts of his estate as they thought right to pay the legacies, was satis- fied by holding it to apply to property which they took as executors. Cameron, In re, Nixon v. Cameron, 26 Ch. D. 19 ; 53 L. J., Ch. 1139 ; 50 L. T. 3.S9; 32 W. R. 834— C. A. See also Buckley v. Buckley, ante, col. 2112 ; and Biggar v. Eastwood, post, col. 2119. Gift of Annuity out of "Rents and Profits " — Bequest of Leaseholds "subject thereto."] — Bequest of leaseholds "upon trust, out of the rents and profits of the said lands, to pay my just debts, and, subject thereto, upon trust to pay out of the rents and profits of the said lands, to my wife Jane Moore, during her life, an annuity or yearly rent-charge of 150Z. per annum ; and, subject thereto, I bequeath the said lands of S., upon trust to receive the rents and profits, and to apply the same for the maintenance, &o., of my sou," and on his attaining twenty-one, to assign him the lauds and accumulations (if any) of the said rents and profits, &c. : — Held, that the annuity was a charge upon the corpus of the leaseholds. Moore's Estate, In re, 19 L. E., Ir. 365 — Monroe, J. Devise of Lands in Trust to pay Annuity — Subsequent Specific Devise.] — A testator devised and bequeathed all his estates, real, freehold, and leasehold, to trustees, on trust to pay an annuity of \Wl. a year among three of his children. A., B., and C. ; the said annuity to be charged on all his said estates ; and after giving certain pecuniary legacies, he devised to his trustees a certain farm of laud, held in fee simple, to be divided between his two sons, P. and M., and devised to his trustees certain other lands to the use that his daughter E. should receive an annuity of 50Z., to be charged on the said lands ; and subject thereto, to the use of his son P. ; and he devised certain other lauds to his trustees, to the use that his daughter J. should receive an annuity of 50Z., to be charged on the said lands, and subject thereto to the use of his son M. After certain specific bequests, the testator bequeathed all the residue and remainder of his personalty not otherwise disposed of — three-fourths to his sons P. and M., and one-fourth to be divided amongst three of his daughters : — Held, that the annuity of 120Z. a year was charged upon, and payable out of, all the testator's real, freehold, and leasehold estates, including those specifically devised. Sponge v. Sponge (3 Bli., N. S. 84), and Conron f. Conron (7 H. L. C. 168) distin- guished. Cornwall v. Saurin, 17 L. E., Ir. 595 — C.A. Additional Legacy given by Codicil.] — The principle that where a will contains a gift of legacies and residue the legacies are (in the event of the personal estate proving insufficient for their payment) to be deemed to be charged upon the real estate applies in favour of an additional legacy given by a codicil to a legatee named in the will. HaU, In re. Hall v. Hall, 51 L. T. 86— Pearson, J. Order of Application of Beal and Personal Estate,]' — A testator, after directing his executors (whom he also appointed trustees) to pay his debts and funeral and testamentary expenses, and giving various pecuniary legacies, gave all his personal estate and effects, except money or securities for money, to R. ; and he gave and 3 Y 2115 WILL — Construction. 2116 devised all the rest, residue, and remainder of his estate, both real and personal, to his trustees, upon trust thereout, in the first pi ace, to pay two specified sums, and, as to the residue thereof, or such part or parts thereof as might lawfully be appropriated for the purpose, for such one or more, or any hospital of a charitable nature, and in such proportions as they in their uncontrolled discretion should think fit. It was held by the Court of Appeal that the gift to K. was not specific, but that all the pecuniary legacies were payable in full before she could be entitled to anything under the bequest to her. The personal estate (including that bequeathed to R.), was insuflBcient for the payment of the legacies, and the real estate had to be sold to make good the deficiency. After the legacies had been paid there remained a surplus of the proceeds of the sale of the real estate : — Held, that the real estate was charged with the payment of the legacies only in aid of the personal estate, and that E. was not entitled to be recouped pro tanto out of the surplus the loss which she had suffered by the application of the personal estate bequeathed to her in the payment of legacies. Ovey, In re, Sroadient v. Sarrow, 31 Ch. D. 113 ■; 55 L. J., Ch. 103 ; 53 L. T. 723 ; 3i W. E. 100 — Pearson, J. See Taylor, In re, ante, col. 2082. Bight of Legatees to Back Bents.] — Where a devisee or his assigns have been in possession of real estate charged with the payment of legacies, and the estate proves insufficient to satisfy the legacies, the legatees are not entitled to back rents. Qarfitt v. Allen, or Allen v. Zongstaffe, 37 Ch. D. 48 ; 57 L. J., Ch. 420 ; 57 L. T. 848 ; 36 W. R. 413— North, J. ." Testamentary Expenses "—Costs of Litigation in Probate Division. ]— A testatrix, by her will, after making various specific devises of her real estate, and giving certain legacies, charged her real estate, in exoneration of her personal estate, with the payment of her debts, funeral and testamentary expenses, and the legacies which she gave. The will was disputed in the Probate Division by, amongst other persons, her co- heiresses-at-law. The action in that Division was compromised, and the will proved in solemn form, it being provided in the agreement for the compromise that the costs of that action should be paid out of the estate in accordance with the rules and practice of the court. The question arose whet|ier the costs incurred by the co- heiresses in that action were testamentary ex- penses, so as to be payable out of the real estate under the charge of those expenses upon the real estate made by the will : — Held, that such costs were testamentary expenses, inasmuch as they were incurred in establishing the will, and that they were therefore payable out of the real estate. Brown v. Burdett, 63 L. J., Ch. 56 j 48 L. T. 753 ; 31 W. E. 854— V.-C. B. ii. Exoneration of Personal Estate. In what Cases.] — Testator gave to his wife an annuity of 60Z., issuing and payable out of his real estate thereinafter devised to his three sons. He then gave to his -daughter A. a legacy of 500Z., and to each of his sons H. and S., and to each of his daughters M. and E., a, legacy of 1,600Z., to be paid, with interest, two years after his death. And he thereby charged and made chargeable his real estate, thereinafter devised to his three sons J., T., and F., with the payment of the said legacies and. the interest thereon. He gave his personal estate (charged with the payment of debts, funeral and testamentary ex- penses, and expenses of proving his will) unto his said sons J., T., and P., and gave all his re- siduary real estate (subject to mortgages, and subject to and charged with the payment of the annuity of 60Z., and the legacies to his sons H. and S. and his daughters M. and E., and also the legacy of 500Z. to his daughter A., and sub- ject also, in aid of his personal estate, to the payment of his debts, funeral and testamentary expenses, and the expenses of proving his vidll) equally between his said sons J., T., andF.: — Held, that the legacies were charged on the real estate exclusively in exoneration of the personal estate. Needham, In re, Robinson v. Needlunn, 54 L. J., Ch. 75— V.-C. B. By his will a testator bequeathed a legacy of 16,000Z. to trustees for his daughter A. during her life, and after her death directed that the legacy should revert to and be added to his general residuary personal estate and go as the same was bequeathed by his will. The testator then gave his general residuary personal estate to B. The testator devised his'estates in certain places to other trustees as a fund for the dis- charge of his debts, funeral and testamentary expenses, and his pecuniary legacies in aid of his personal estate, with power to his trustees, if they thought it expedient or necessary, either before or after his residuary personal estate should be exhausted, to raise money for those purposes by sale or mortgage, and subject thereto, upon trust for B. in fee. The personal estate of the testator was insufficient for the payment of his debts and legacies, and B. supplied such deficiency, including the annual payments to A. in respect of her legacy. A. survived both the testator and B. On the death of B. the question arose whether, as the testator's personalty was insufficient for the payments before mentioned, the testator intended that the corpus of the legacy should be raised out of the real estate devised to B. for the benefit of B., who was the testator's residuary legatee : — Held (following Johnson v. Welster, 4 De G. M. & G. 474), that the words " revert to and be added to my general residuary estate," in the will, showed that the testator meant the legacy to be restored to the funds from which it was taken ; and that it was not to be taken from the real estate merely for the purpose of augmenting the personal estate : — Held also, that B. had a vested interest in the charge on the real estate of which he was abso- lute owner ; and that such interest was in im- mediate contact with his ownership of the in- heritance in the land. Held further, that, inasmuch as the charge was not raised during the lifetime of B., and that now it was neither necessary nor expedient to raise it, the corpus of the legacy was not raisable out of the real estate for the benefit of B.'s personal estate at the in- stance of those who were entitled to his per- sonal estate. Somerset (_Buke), In re, Thynne V. St. Maur, 55 L. T. 753— Chitty, J. See Lloyd V. Lloyd, ante, col. 2067. Lapsed Bequest.]— A testatrix devised her real estate to trustees in trust for sale, and 2117 WILL — Construction. 2118 directed them out of the proceeds to pay her funeral and testamentary expenses, debts, and legacies, and pay the residue to a class of persons. She then directed her trustees, who were also her executors, to sell her leaseholds, and if the sale moneys of the real estate were insufficient to pay her debts, funeral and testamentary ex- penses, and legacies, to apply so much of the proceeds of the sale of the leaseholds as should be sufficient for that purpose, and to pay the residue, or if no part was required for the above purpose, the whole of the proceeds to another class of persons. She then bequeathed to her trustees " all my personal estate," upon trust to call it in and convert it into money, and after payment of the expenses of such calling in and conversion, to pay the proceeds to the churchwardens of C. for charitable purposes. Part of the personal estate consisted of a mort- gage debt, as to Which the charitable bequest failed, and the Crown became entitled, there being no next of kin : — Held, that there was upon the will a sufficient indication of intention that the general personal estate should be exone- rated from debts, funeral and testamentary ex- penses, and legacies out of the real estate ; and if that was insufficient, out of the lease- holds ; but that this right to exoneration failed as regarded the property which went to the Crown, and that there was no distinction in this respect between the freeholds and leaseholds. Browne v. Groombridge (4 Madd. i95), in which a direction to exonerate the general personal estate out of a specific fund of personalty was held to enure for the benefit of persons who took by lapse, not followed : — Held, therefore, that the debts, funeral and testamentary expenses, and legacies, must be apportioned rateably be- tween the pure and impure personalty, including the leaseholds ; that the real estate and then the leaseholds were to be applied in exonerating the pure personalty from its proportion of debts, &c., and that the charity took the pure personalty, subject to so much of that proportion as the freehold and leasehold estates were insufficient to satisfy, and that the Crown took the impure personalty (other than leaseholds) subject to its proportion of debts, &c. Meere, In re, Kilford v. Blaney, 31 Ch. D. 56 ; 55 L. J., Ch. 185 ; 54 L. T. 287 ; 34 W. E. 109— C. A. Deed— Specific Personal Estate.]— The rule that a charge of debts on real estate does not of itself exonerate the personal estate applies to a case where a charge for payment of debts after the grantor's death is created by deed. But no such rule applies to specific personal estate given on similar trusts ; in such a case the specific personal estate will be the primary fund for the payment of the debts. Trott v. Buchanan, 28 Ch. D. 446 ; 54 L. J., Ch. 678 ; 52 L. T. 248 ; 33 W. E. 339— Pearson, J. A testator by a deed executed in his lifetime conveyed and assigned real and personal estate to trustees, in trust for himself during his life, and after his death to sell and convert the property, and to stand possessed of the proceeds on trust, after payment of costs, to pay all the debts which should be due from him, and his funeral expenses, and, after such payment as aforesaid, upon trust for his sons and their children. By his will the testator, after reciting the deed, devised and bequeathed all and every the residue of his real and personal estate not comprised in and subject to the trusts of the deed to his wife for her life, with remainders over, and he ap- pointed his wife and one of the trustees of the deed executors of his will, which was proved by the widow and one of the trustees : — Held, that as regarded the real estate comprised in the deed, the testator's general personal estate was not exonerated from its primary liability to pay his debts. But held, that the personal estate com- prised in the deed was the primary fund for the payment of the debts. French v. Chichester (2 Veru. 568) discussed and explained. li. Specific and Residuary Gifts of Personalty.] — A testatrix bequeathed to her trustees certain specified moneys, upon trust, "after payment thereout, in the event of my predeceasing my husband, of my debts and funeral expenses as well as of my testamentary expenses for the time being," for her nephew ; and after giving certain pecuniary legacies she devised and be- queathed all her real and personal estate not thereinbefore otherwise bequeathed, to trustees, upon trust after her husband's death, to sell and convert, and out of the proceeds, " subject never- theless to the bequest of moneys to my said nephew hereinbefore contained," to pay her debts, pecuniary legacies, and funeral and testa- mentary expenses, and invest the residue and stand possessed thereof upon certain trusts. The testatrix predeceased her husband : — Held, that the moneys comprised in the specific gift were primarily applicable to the payment of the debts and funeral and testamentary expenses of the testatrix. Hastings {Lady), In re, Hallett v. Hastings, 55 L. J., Ch. 278 ; 54 L. T. 75 ; 34 W. R. 452— Kay, J. ill. Contribution. Charitable Bequest.] — A testator, entitled to estates in two counties, L. and A., both subject to incumbrances, devised them to trustees in trust to apply the rents in payment of head- rents, fines for renewal, taxes, &c., and the interest upon charges affecting them, and to pay the residue of the rents, to his wife for life ; and after her death in trust to receive the rents, and employ them during the period of twenty-one years in payment of head-rents, fines, &c., and the interest on charges and two annuities to his nephews A. N. and G. N. ; and next, so far as the rents would extend, in payment of the charges on his estates, his debts and legacies, at such time as the trustees should think most convenient. He devised portions of the L. estate to his nephews A. K. and C. N., free from incumbrances after the expiration of the period of twenty-one years ; and as to the rest, residue and remainder of his estates not before devised, charged with the residue of the incumbrances, debts, and legacies then unpaid, to T. for life, remainder to T.'s first and other sons in tail male, remainder to B. for life, remainder to B.'s first and other sons in. tail male, with other remainders over, and an ultimate remainder to his own right heirs. He bequeathed annuities for charitable purposes charged on the A. estate, and directed that charges which should affect his estates, and all his debts due at his death, and his legacies, should be borne by and be charges primarily affecting the " aforesaid resi- due " of his estates limited as aforesaid, and 3x2 2119 WILL — Construction. 2120 be paid out of the rents and profits thereof in exoneration of his personal estate and other properties bequeathed and devised to his wife and nephews, and so that such personal estate and other property should be relieved therefrom. After the wife's death, estate A. was sold by the creditors, and the proceeds of the sale paid all the charges except a sum of 337Z. : — Held, that during the period of twenty-one years from the death of the testator's wife the rents and profits of the estates devised to A. N". and C. N. and to B. respectively were both equally applicable to the payment of the charges on the testator's estates and his debts and legacies, and that the estates devised to B. were not bound to in- demnify the estates devised to A. N. and C. N". against such charges, debts, and legacies until after the expiration of the term of twenty-one years : — Held, also, that the fact that the charges had been paid off by the sale of estate A. did not entitle A. N. and C. N. to go into possession of the estate devised to them before the expiration of the twenty -one years, and that the surplus rents of the unsold estates, after payment of the sum of 337Z. so left unpaid and interest, and of the annuities payable to A. N. and 0. N., and the legacies, were applicable, during the twenty-one years, to recoup the persons who would, but for the sale, have been entitled to the sold lands, so much of the charges paid out of the corpus of the estate sold as, but for the sale, would have been payable out of the rents during the term of twenty-one years : — Held, further, that the charitable annuities were not charged on the estates devised to A. N. and C. N"., and that the legacies were only charged on the rents of these estates during the twenty-one years : — Held, further, that the charitable annuities charged on the A. estate were entitled to marshal and stand in the place of the incumbrances as against the unsold estates, but so that at the expiration of the twenty-one years' term, their right to marshal as against the estates devised to A. N. and C. N. should cease. ar V. Eastwood, 19 L. R., Jr. 49— C. A. Deficiency of Personal Estate — Abatement — Portions charged on Eeal Estate.] — A testator devised his real estate to the use of his wife during her life or widowhood, with remainder to the use of trustees for a term of 500 years, on trust to raise, by mortgage of the real estate or out of the rents and profits, portions of 5,000Z. apiece for each of his younger children, with remainders in strict settlement, the testator's eldest son taking the first life estate. The tes- tator's general personal estate was insufficient for the payment of his debts, and, consequently, the specifically bequeathed personal estate and the real estate had to contribute : — Held, that, as between the portioners and the persons entitled to the real estate on which they were charged, the former were not bound to contribute to make good the deficiency. Hailtes v. Boulton (29 Beav. 41) followed; Long v. Short (1 P. Wms. 403) considered and explained : — Held, also, that, as between the real estate and the specifically bequeathed personal estate, the former must contribute in proportion to its full value, not in proportion to its value less the amount of the portions. Saunders-Davies, In re, Saunders-Davies v. Saimders-Davies, 34 Ch. D. 482 ; 56 L. J., Ch. 492 ; 56 L. T. 153 ; 35 W. E. 493— North, J. Mixed Fund of Eealty and Personalty —Pay- ment out of Personal Estate.] — A testator by his will declared in effect that his debts, legacies, funeral and testamentary expenses, and the costs, charges, and expenses incidental to the execution of the trusts of his will, should be paid rateably out of all his estate, real and personal. In the administration of his estate by the court, the debts, &c., were paid out of the personalty, but without prejudice to the liability of the realty. On the further con- sideration of the action : — Held, that the real estate must make good to the personal estate its rateable proportion of the amount paid out of the personal estate for debts, &c., with interest, Ashworth v. Munn, 34 Ch. D. 391 ; 56 L. J., Ch. 451 ; 56 L. T. 86 ; 35 W. E. 513— North, J. Expenses of Probate — Married Woman, Will of— Costs of Proceedings.] — A married woman who had a power of appointment over certain trust funds, and was also possessed of separate estate her title to which had accrued before the Married Women's Property Act, 1882, died in 1887, having in the same year made a vrill, by which she exercised her power of appointment over the trust fund and appointed executors, but made no disposition of her separate pro- perty. Probate of the will was granted to the executors according to the altered practice in- troduced by the Probate Eules of 1887, i.e., in the ordinary form without any exception or limitation. The court decided that on the death of the testatrix the title of her husband to her undisposed of separate estate accrued, and that the executors of her will became trustees of it for him, and not for the next of kin of the testatrix : — Held, that the expenses of proving- the will, including the probate duty, must be apportioned rateably between the appointed and undisposed of property in the same manner in which they would have been apportioned under a grant cseterorum before the change in the form of the grant ; but that the costs of the proceedings in which the questions were deter- mined must fall upon the undisposed of pro- perty, as they were occasioned by a contest between the husband and the next of kin. Zamhert's Estate, In re, Stanton v. Lavibert, 39 Ch. D. 626 ; 57 L. J., Ch. 927 ; 59 L. T. 429— Stirling, J. iv. Marshalling:. Eesiduary Gift to Charities with Direction, for Payment exclusively out of pure Personalty.] — A testatrix gave all her real and personal estate to trustees upon trust to convert, and out of the proceeds pay her debts, funeral and testa- mentary expenses, and certain legacies be- queathed to private individuals, and directed that all such legacies should in the first instance be payable out of the proceeds of sale of her ' ' real and leasehold estate, if any." She directed her trustees to divide the residue of her estate into three parts and pay the same to certain charities. She then directed that ' ' the foregoing charitable legacies " should be paid " exclusively" out of such part of her pure personal estate as was legally applicable for that purpose. The testatrix had no real or leasehold estate in this country, but was possessed of land in the colony of the Cape of Good Hope (the value of which was less than the amount of the general legacies) 2121 WILL — Construction. 2122 and of pure and impure personalty : — Held, that the direction as to payment of the charitable legacies was in effect equivalent to a direction that the residue should consist exclusively of pure personalty, and therefore operated as a direction to marshal for the benefit of the charities ; that the general legacies were pri- marily payable out of the proceeds of sale of the land in the colony ; ana that the debts and funeral and testamentary expenses and costs of action and the unpaid portion of the general legacies must be paid in the first instance out of the impure personalty so as to leave the pure personalty, so far as possible, to constitute the ultimate residue. Arnold, In re, Ravenscrnft v. Workman, 37 Ch. D. 637 ; 57 L. J., Ch. 682 ; 58 L. T. 469 ; 36 W. R. 424— Kay, J. Uortmain Act — Direction to Uarshal.J — A testator, by will dated in 1883, after giving certain pecuniary legacies, gave the residue of his estate and property to trustees upon trust to sell and convert, and out of the proceeds of sale and the money of which he should be possessed at the time of his death to pay his funeral expenses, and upon trust to pay and divide the net residue unto and equally between the trea- surers for the time being of St. Thomas's Hos- pital, St. George's Hospital, Westminster Hos- pital, and Charing Cross Hospital, to be applied for the use and benefit of the said hospitals. The testator then declared that his pure personal estate should in the first place be applied in payment of the shares of St. Thomas's Hospital and Charing Cross Hospital. The Westminster Hospital and the St. George's Hospital were empowered to take land or impure personalty ; the other two hospitals were not. The testator at the time of his death was entitled to both pure and impure personal estate : — Held, that there was in the will sufficient direction to marshal the estates so that the pure personalty was first to be applied in payment of the shares of the two hospitals which could not take land or impure personalty. Pitt, In re. Lacy v. Stone, 53 L. T. 113 ; 33 W. R. 653— Chitty, J. See also Biggar v. Eastwood, supra. Effect of Locke King's Act.] — See Buckley V. Buckley, ante, col. 2112. V. AccTunxilatioiis. Eesidue.J — A testator bequeathed to his trustees and executors, the sum of 3,750Z. Bank of Ireland stock, and directed them to retain it in their names for the purpose of se- curing the punctual payment of an annuity of 300Z. to his wife ; and after her death he directed the annuity to be paid to the governor and trustees of the Hospital for Incur- ables, Donnybrook Koad, Dublin ; and by a codicil he bequeathed the residue of his estate to the trustees for the time being of the Mater Misericordiae Hospital, Dublin. The dividends on the bank stock were more than sufficient to pay the annuity and a large surplus had been accumulated and invested by the trustees in Three per Cent. Stock:— Held, on a peti- tion presented by them for the advice of the court, that they were at liberty to pay over accumulations of the surplus dividends to the trustees of the latter hospital as residuary legatees. ThareVs Trusts, In re, 13 L. R., Ir. 337— M. R. Sirectlons to accumulate till Mortgage Paid off — Sale of Part by Mortgagees.] — A testator who died in 1875 devised his estate to trustees, and directed that the rents should be accumu- lated until the amount of the accumulations was sufficient to discharge the principal-money due on mortgages on the estate, and that thereupon the trustees should pay off the same. And he declared that the tenants for life should not be entitled to any portion of the rents until the mortgages had been paid off. There were two mortgages on the estates. The trustees accumu- lated the rents and paid off one mortgage. The mortgagees of the other mortgage in 1884 sold the part of the estates subject to it for less than the amount of the mortgage debt, and the residue was paid off out of the accumulations of which a surplus still remained : — Held, that the tenant for life was entitled to be let into possession of the rest of the estates, and to payment of the remainder of the accumulations. Norton v. Johnstone, 30 Ch. D. 649 ; 55 L. J., Ch. 222 ; 34 W. R. 13— Pearson, J. Contingent Bemainder — Bents and Profits — Doctrine of Attraction.] — A testator, by his will dated in 1851, after making divers specific devises and bequests, and giving a life interest to his wife in his residuary real estate, devised such residuary real estate, after the death of his wife, to his trustees in trust for his grandson during his life, and from and after his decease in trust for " all and every his child and children who shall attain the age or respective ages of twenty-one years, and his, her, or their heirs and assigns for ever " ; but in case there should be no child of his grandson who should attain the age of twenty-one years, then, as to the same resi- duary real estate, upon trusts over as in the will mentioned. The will contained a gift of the re- siduary personal estate, but it was distinct from the above devise, and upon different trusts from those declared concerning the real estate, although some of the trusts were the same. The will also contained powers for the trustees to grant leases, and apply the rents and profits of the real estate in making repairs. The testator died in 1853, and his widow died in 1866. The grandson died in October, 1867, leaving an only child, who was born on the 11th February, 1864. The question arose whether the accumulated rents accruing between the date of the death of the testator's grandson and the time when the grandson's only child attained the age of twenty-one years, were undisposed of by the will, or passed to such child : — Held, that the accumulated rents be- longed to the testator's heir-at-law : — Held, fur- ther, that the doctrine of attraction, as established by Gfenery v. Fitzgerald (Jac. 468) and Bumble, In re, Williams v. Murrell (23 Ch. D. 360), did not apply. Williams, In re, Spencer v. Brig- house, 54 L. T. 831— Chitty, J. Contingent Legacy — Direction to Set Apart — Intermediate Income] — A testator appointed executors and trustees, and bequeathed to his trustees the sum of 750J. upon trust to pay and divide the same amongst certain persons con- tingently upon their surviving him and attain- ing twenty-one ; and in default of any such person attaining a vested interest he directed 2123 WILL — Construction. 2124 Ihat the 750i. and the investments representing the same should fall into his residuary personal estate ; and he gave his residue not therein- before otherwise disposed of to his trustees upon trust to convert the same, and out of the moneys thereby arising pay his debts and legacies, and iuvest the residue of the same moneys, and pay the income to his wife for life. The persons contingently interested in the 750^. were infants : — Held, that as the 750Z. was by the terms of the will directed to be set apart for the benefit of the contingent legatees, there was a gift to them of the intermediate income, which was therefore applicable for their maintenance. Medloch, In i-e, Ruffle V. Medloeh, 55 L. J., Ch. 738 ; 54 L. T. 828— Kay, J. A testator by will, after giving his real and personal estate to trustees upon trust for sale and conversion and payment of debts and legacies, directed the trustees to stand possessed of the residue of the trust moneys upon trust, in the first place, to pay thereout 1,500Z. to be equally divided between such of six legatees whom he named as should be alive at the death of A. B. ; such shares to be paid to them respec- tively on attaining twenty-one or marriage. And as to the rest of his residuary estate upon trust for X. Y. A. B. and the six legatees all survived the testator and were still living. The trustees having set apart and invested 1,500Z. to meet the legacy, X. Y., the six legatees, and the next of kin of the testator, all claimed to be entitled to the income thereof during the life of A. B. : — Held, that such income passed under the gift of the rest of the testator's residuary estate, and that X. Y. was entitled thereto during the life of A. B. JudUn's Trvsts, In re, 25 Ch. D. 743 ; 53 L. J., Ch. 496 ; 50 L. T. 200 ; 32 W. K. 407— Kay, J. Where a contingent deferred legacy has been severed from the general estate of the testator, such severance will not entitle the legatee to interim interest thereon unless the severance has been necessitated by something connected with the legacy itself. IT). Jurisdiction of Court to allow Maintenance — Tenant for Life.] — A testator directed the income of his real and personal estate to be accumulated for twenty-one years, and gave the accumulated estates to his sister J. C. for life, then to her son W. for life, and after his decease to his children in tail male, and then to her son J. for life, and then to her son A. in tail male. The court directed an annual sum to be paid to J. C. out of the income of the personal estate for the maintenance and education of her three sons. SmelocTi v. Haveloch (17 Ch. D. 807) followed. Collins, In re, Collins v. Collins, 32 Ch. D. 229 ; 55 L. J., Ch. 672 ; 55 L. T. 21 ; 34 W. B. 650 ; 50 J. P. 821— Pearson, J. Where a testator has by his will made a settle- ment of his estate, subject to a prior trust for the accumulation of the whole income during a term of years not exceeding the legal limit, the court has, in the absence of special circumstances, no jurisdiction to order an allowance to be paid out of the income for the maintenance and education of the person who will, if he is living at the end of the term, be a tenant for life, even if there is no other way in which a provision can be made for his maintenance and education. Ilavelocli V. Havelooli (17 Ch. D. 807) distin- guishedi Alford, In re. Hunt, or Hurst v. Parry, 32 Ch. D. 383; 55 L. J., Ch. 659 ; 54 L. T. 674 ; 34 W. E. 773— Pearson, J. A testator devised his real estate to trustees for a te^m of twenty years after his death, and, after the expiration of the term, and in the meantime subject thereto, to the use of the plaintiff for life, with remainder to the use of his first and other sons successively in tail, with remainders over. Under the trusts of the term the rents were to be accumulated for a period of twenty years after the testator's death. The income of the testator's residuary personalty was subject to a similar trust. At the end of the twenty years the residuary personalty and the accumulations of the income and of the rents were to be laid out in the purchase of real estate, which was limited to the same uses. The will contained no provision for the maintenance of the plaintiff during the term. He was not the heir-at-law of the testator, but he was the eldest son of a favourite niece of the testator, who had before her marriage lived a good deal with him and had been educated at his expense. The testator was a tenant-farmer. The rental of his real estate was about 440Z. per annum ; his personal estate was about 10,OOOZ. An order had been made in the action allowing 3002. a year for the main- tenance and education of the plaintiff during his minority. After he had attained twenty-one the plaintiff applied for the continuance of the allowance until further order : — Held, that, there being no special circumstances, there was no jurisdiction to interfere any further with the trust for accumulation. JS. A testator devised to trustees real estate, pro- ducing an estimated income of 1,300Z. a, year, in trust to accumulate the rents and profits at compound interest for a term of twenty-one years, and at the end of the said term, or as soon as circumstances would permit, to lay out the accumulations in the purchase of lands, to be settled subject to the said trust term to the use of A. for life ; remainder to B., the eldest son of A., for life ; remainder to B.'s first and other sons in tail male ; remainder to A.'s younger sons (then in being) successively for life ; with like remainders to their first and other sons in tail male respectively ; with several remainders over. The testator also bequeathed his residuary personal estate (which was above the value of 58,0002.) in trust to be invested in the purchase of lands, to be settled to the like uses as were thereinbefore directed in relation to the accumu- lations of the rents and profits of the lands comprised in the term. The directions as to accumulation contained in the will were repeated in the codicils. A.'s sons were minors. An application was made on behalf of the eldest for an allowance to A. out of the rent, profits, and income for the maintenance of the sons, on the ground that A.'s own means were not suflBcient to enable him to educate and maintain them suitably to their prospeclive position : — Held, that as there was an imperative trust to accumu- late, the court could not make an allowance for maintenance. Haveloch v. Haveloch (17 Ch. D. 807) not followed. Kemmis v. Kemmis, 15 L. K., Ir. 90— C. A. vi. Apportionment of Gain and Loss. Trust for Conversion — Power to Postpone — Property falling in after Testator's Death.]— 2125 WILL — Construction. 2126 Where a testator- has bequeathed his residuary personal estate to trustees upon trust for con- version, with power to postpone such conversion at their discretion, and to hold the proceeds upon trust for a person for life with remainders over, and such residue includes outstanding per- sonal estate, the conversion of which the trustees, in the exercise of their discretion, postpone for the benefit of the estate, and which eventually falls in some years after the testator's death — as, for instance, a mortgage debt with arrears of interest, or arrears of an annuity with interest, or moneys payable on a, life policy — such out- standing personal estate should, on falling in, be apportioned as between capital and income, by ascertaining the sum which, put out at interest at 4 per cent, per annum, on the day of the testator's death, and accumulating at com- pound interest calculated at that rate with yearly rests and deducting income tax, would, with the accumulations of interest, have produced, at the day of receipt, the amount actually received ; and the sum so ascertained should be treated as capital, and the residue as income. Chesterfield's (^Earl) Trusts, In re, 24 Ch. D. 643 ; 52 L. J., Ch. 958 ; 49 L. T. 261 ; 32 W. E. 361— Chitty, J. S. P., JBeavan v. Beavmi, 24 Ch. D. 649, n. ; 52 L. J., Ch. 961, n. ; 49 L. T. 263, n. ; 32 W. E. 363, n.— Eomilly, M. E. Contingent Keversionary Interest — Capital and Income.] — A testator by his will be- queathed his residuary personal estate upon trust, after payment of debts and legacies, to lay out and invest the residue as therein men- tioned, and to pay the income to the plain tifE for life, with remainders over. Part of the residuary estate consisted of a contingent reversionary in- terest in some settled' funds. The testator died in 1832, and the reversion first became saleable in 1846, but it had never been sold. Since 1846 the reversion had enormously increased in value. tlpou an application in efEect to have the value of the -reversion apportioned as between tenant for lite and remainderman : — Held, that the principle of Chesterfield's Trusts, In re (24 Ch. D. 643), applied, and that assuming the reversion to have been sold at an agreed price, it must be ascertained what principal sum would, with compound interest from the date of the testator's death, make up the agreed price, and such principal sum alone must be attributed to corpus, and the whole of the rest to income. Hobson, In re. Walker v. Appach, 55 L. J., Ch. 422 ; 53 L. T. 627 ; 34 W. E. 70— Kay, J. Apportionment Act.] — See Appoktionment. Incidence of Loss — Power to continue Busi- ness.] — A. gave all his real and personal estate to trustees upon trust for sale, conversion and investment, and to pay the income of one-fifth part to his vidfe for life, and subject thereto, to divide the whole into four parts, and pay the income of one' such part to each of his four daughters for life, and after her death to hold such part in trust for her children equally. And he empowered his trustees to carry on any business carried on by him, and directed that the net profits of any business so carried on should, except such parts thereof as the trustees should in their discretion reserve for the purpose of increasing the capital in such business, be treated as income of his said trust estate. And he directed that, should any losses (not being the result of neglect) fall on his trustees in con- sequence of their carrying on such business, the same should be defrayed out of his estate. The testator left property employed in business, and other property. The trustees carried on the business, and duly invested the other property. Forsome years the business was successful, and the profits were duly divided among the tenants for life. In a subsequent year losses were incurred, and the trustees claimed that they should be recouped out of the income of the trust estate generally : — Held, that the losses must be borne by the capital of the testator's estate, and not by the tenants for life. MilUehamp, Goodale and Bulloch, In re, 52 L. T. 758 — Pearson, J. Bequest of Share of Business.] — A trader devised and bequeathed to trustees all his real and personal estate, including his share in the business in which he was a partner, on trust as to one moiety thereof, to pay the annual proceeds (including the net profits of the business) to his daughter for her life, for her separate use with- out power of anticipation, and after her death the moiety was to be held in trust for her children or remoter issue. He directed his trustees to carry on the business after his death until the expiration of the partnership term, and authorised them to use, not only such capital as he should have in the business at the time of his death, but also such other part of the trust premises as they should think fit. The partnership deed autho- rised the partners to dispose of their shares by will ; it did not provide how any loss in carrying on the business should be borne. The will con- tained no provision as to the mode in which any loss should be borne as between the persons interested in the testator's estate. It had been the practice of the firm in prosperous years to divide the whole profit among the partners, and in years in which there was a loss to write o£E each partner's proportion of the loss from his share of the capital. The testator died in 1879. After his death the business was carried on by his trustees in partnership with the other part- ners. . Up to the end of 1880 it was carried on at a profit, and half the testator's share of that profit was paid by the trustees to the daughter. For the year 1881 there was a loss, and the testator's share of the loss was written ofE from his share of the capital in the books of the firm. For the year 1882 there was a profit : — Held, that the daughter was entitled to receive half that share of ■ the profits which the. testator, according to the practice of the firm, would have received if he had been alive, and that, consequently, she was entitled to receive half his share of the profits for the year 1882, with- out any deduction for the purpose of making good the corpus of the settled share in the interest of the remaindermen. 6ow v. Foster, 26 Ch. D. 672 ; 51 L. T. 394 ; 32 W. E. 1019— Pearson, J. vii. Other Points as to Payment- Advance by Parent to Child — Interest on Pay- ment of Income to Widow — Hotchpot Clause.]^ A testator had advanced by way of loan to the de- fendant, one of his children, a sum of 2,0007., upon which sum interest was paid during the testator!s lifetime. The testator by his will, devised and b6- 2127 WILL — Cons truction. 3128 queathed his property, both real and personal, to trustees on trust to permit his widow to receive the income actually produced by such property, however constituted or invested, during widow- hood, and subject thereto on trust for his child, if only one, or all his children equally if more than one, who being a son or sons should attain the age of twenty-one years, or being a daughter or daughters should attain that age or marry. The will contained a proviso that any ad- vances made by the testator to any child or to the husband of any child in his lifetime, together with interest on such advances, as charged against such child or her husband in his private memorandum book in his own handwriting, should, according to the amount thereof, be taken in full or in part satisfaction of his or her share in the testator's property, unless the tes- tator should otherwise declare by writing under his hand. The sum advanced to the defendant was charged against him in the testator's memo- randum book, and such book contained an entry as follows : — " This is the memorandum book named in my will as containing the ad- vances made by me to my children or their husbands to be taken in satisfaction of their respective shares in ray estate " : — Held (Cotton, L.J., dissenting), that the testator's widow was entitled to receive from the defendant during her life, as part of the annual income given to her by the will, interest on the said sum of 2,000^. Limpvs V. Arnold, 15 Q. B. D. 300 ; 54 L. J., Q. B. 85 ; 33 W. E. 537— C. A. Deferred Payment — Substitutional Legacy.] — By his will a testator bequeathed 10,000Z. upon trust for A. for life, and after her decease for eight persons named, in certain proportions, among whom was B., who was to receive 1,0001. ; by a codicil to his will the testator gave to B. " 2,000Z. instead of 1,000Z. as bequeathed by my said will " : — Held, that, following the general rule, the legacy by the codicil being given in- stead of that by the will, was subject to the same incidents, and the payment must be de- ferred until after the death of A. Colyer, In re, MilUhm V. Snelling, 55 L. T. 344 — Kay, J. Direction to appropriate Fund — Deficiency in Income — Eesort to Capital.] — A testator, after giving various pecuniary legacies, bequeathed to various persons annuities of \l. a week, and he directed sufficient funds to be appropriated in the name of his trustee out of his personal estate to answer by means of the income the payment of the annuities, and he directed that on the dropping of the annuities the appro- priated funds should follow the distribution of his residuary personal estate. The income of the personal estate, after payment of the pecu- niary legacies, was insufficient to pay the annui- ties : — Held, that the annuities were payable, so far as necessary, out of the capital of the estate. Taylur, In re, Illsley v. Randall, 53 L. J., Ch. 1161; 50 L. T. 717; 33 W. R. 13— Pearson, J. Annuity free of Legacy Duty — Deficient Estate — Abatement of Annuities.] — When a testator's estate is insufficient (after payment of his debts) to pay in full annuities given by his will, the fund must (after payment of costs) be appor- tioned between the annuitants in the proportion which the sum composed of the arrears of the annuity in each case plus the present value of the future payments bear to each other, and this rule applies in a case in which the annuitants are all living at the time of distribution. A tes- tator gave an annuity of 1502. to his widow, and an annuity of \00l. to a stranger in blood, and he directed that the second annuity should be paid free of legacy duty, which should be paid out of his estate. After payment of his debts, the estate was insufficient to pay the annuities in full : — Held, that (after payment of costs) the fund must be apportioned as above between the two annuitants ; that the legacy duty payable on the sum apportioned to the second annuitant must be deducted from the whole fund, and the balance then divided in the same proportion between the two annuitants. Heath v. Nugent (29 Beav. 266) followed. WilUns, In re, Wilkins V. BotTierham, 27 Ch. D. 703 ; 54 L. J., Ch. 188 ; 33 W. R. 42— Pearson, J. Bequest subject to Payment of Debts — In- adequacy of Estate — Legatee not personally Liable.] — A testator gave all his interest in certain leasehold farms mentioned in his wUl, and all the stock of every description thereon, and also all moneys due to him, to his son, subject nevertheless to the payment of aU his debts, funeral and testamentary expenses. The testator's son continued in possession and re- ceipt of the profits of the farms for about three years, when the leases of the farms and the stock thereon were disposed of. The testator's estate was very involved, and the liabilities to be dis- charged by the son, under the terms of the will, and as a condition of his accepting the bequest, greatly exceeded the value of the bequest: — Held, that the son must be deemed to have elected to accept the bequest contained in the will, subject to the payment of debts, funeral and testamentary expenses ; but he was not per- sonally liable to pay the same. Cowley, In re, Souch V. Cowley, 53 L. T. 494— Kay, J. Bequests "free of Legacy Duty."] — See Revenue, III. 7. WINDFALLS. See TIMBER. WINDING UP. See COMPANY. WINDOWS. See EASEMENT. 2129 WOEDS. 2130 WINE. See INTOXICATING LIQUORS. WITNESS. In Bankruptcy Cases.] — See Bankruptcy. In Criminal Cases.] — See Criminal Cases. In Other Cases.]— -Set Evidence. WOMEN. Criminal Law Belating to.] — See Criminal Law. Other Matters Belating to.] — See Husband AND Wife. WORDS. In Testamentary Instruments.] — See Will. " Ahout."] — See Alcoek v. Zeeuw, ante, col. 1664. "Acting under the Public Health Act."] — See Lea v. Facey, ante, col. 878. "Action."] — See ColUs v. Lewis, ante, col. 558. " Actually Enjoyed."] — See Cooper v. Straker, ante, col. 677. " Allowances."] ante, col. 876. See Whiteley v. Barli " And " " Or."] — See Mersey Docks v. Hender- son, ante, col. 1717. "Annual Profits or Gains."] — See ante, cols. 1567-1570. "Annual Value."] — See Stevens v. Bishop, ante, col. 1571, and cases ante, cols. 1965, 1966. "Appurtenances."] — See Thomas v. Owen, ante, col. 672. "As far as is Seasonably Practicable."] — See Wales v. Thomas, ante, col. 1229. "Assignee."] — See Ward, In re, ante, col. 1754, and Ingle v. MeCutchan, ante, col. 1782. "At and from Port."]— iSse Colonial Insur- ance Company v. Adelaide Marine Insurance Company, ante, col. 1011. "At or before."] — See Tunnel Mining Com- pany, In re, ante, col. 446. "At Ship's Eisk." ] — See Nbttebohm v. Richter, ante, col. 1664. "At Merchant's Eisk."] — See Burton-v. Eng- lish, ante, col. 1664. "At the Wreclc."] — See Difiori v. Adams, ante, col. 1011. "At Eisk of Craft until Safely Landed."]— See Souldcr v. Merchants' Marine Insv/ramce Company, ante, col. 1011. "Beer."] — See Howorth v. Minns, ante, col. 1047. "Beneficial Owner."] — See Stanford, Mx parte. Burlier, In re, ante, col. 238. "Building."] — See Harris v. Be Pinna, ante, col. 678. "Case or Canister."] — See Foster y.Biphwys Casson Slate Company, ante, col. 1229. " Carry on Business."] — See Lewis v. Graham, ante, col. 1202. "Cause of Action."] — See Bead v. Brown, ante, col. 5. " Cause then Pending,"] — See Boswell v. Coaks, ante, col. 1395. "Cause or Matter relating to Beal Estate."] — See ante, col. 1488. " Cause Shown."] — See Newitt, Ex parte, Mansel, In re, ante, col. 92. "Causing or Permitting."] — See Midland Railway v. Freeman, ante, col. 17. "Charge or Control."] —>Ske Gibls v. Great Western Railway, ante, col. 1193. "Colonial Wines."] ^ See Commissioners for Railways T. Hyland, ante, col. 319. " Common to the Trade."] — See ante, col. 1846. " Continuing Trustees."] — See ante, col. 1913. " Co-Partnership."] — See Reg. v. Roison, ante, col. 567. " Costs of Execution."] — See Ludford, In re, and Conder, Ex parte, ante, col. 1644. " Concerned or interested in Contract."] — See ante, col. 876. " Criminal cause or matter."] — See cases, ante, col. 22 et seq. "Damage by Collision."] — See Rohson v. Ovmer of the Kate, ante, col. 1720. "Dangers and Accidents of the Sea or Navi- gation."] — See Garston Sailing Ship Company 2131 WOEDS. 2132 v. HicUe, ante, col. 1668 ; Wilson v. Tlie Xantho, ante, col. 1661 ; Hamilton v. Pandorf, ante, col. 1668, and Tlie Glenfruin, ante, col. 1661. "Debenture."] — See ante, col. 368. "Debt or Liability."]— &£ Linton, Ex parte, ante, col. 143. " Defeasance."] — See Consolidated Credit Co. T. Gosney, ante, col. 250. " Defect in Condition of Ways or Machinery."] — See ante, cols. 1194 et seq. " Dilution."]— /See Crofts v. Taylor, ante, col. 1561. "Divisible Assets."]— &e Mysore Reefs Gold Mining Company, ante, col. 420. "Distinctive Device."] — See cases ante, cols. 1840 et seq. "Domestic Animals."] — See Colam-v. Pacjctt, ante, col. 15. "Drain."] — See Bateman v. Poplar Board of Worlis, ante, col. 1216, and Croft t. Ricltmans- worth Highway Board, ante, col. 1978. " Drunken Person."] — See Gundy v. Le Coccj^, ante, col. 1054. " Due Cause."] — See Adam Eyton, In re,ante, col. 421. "Dwelling-house."] — See Wright v. Wallasey Local Board, ante, col. 697, and CooJie v. New River Company, ante, col. 1964. " Due Regard."] — See HemswortU Grammar Sehool, In re, ante, col. 314. "Dumb Barge."] — See Gapp v. Bond, ante, col. 1658, and Hedges t. London Boclt Company, ante, col. 1717. " Event."]— &e ante, cols. 520, 530. " F. 0. B."] — See Stock v. Inglis, ante, col. 1581. " Fair Criticism."] — See Merivale v. Carson, ante, col. 634. "Fancy Word."] — See cases ante, cols. 1838 et seq. "Final Judgment."] — See ante, col. 105. "Finally Sailed from her Last Port."] — See Price T. Limngstone, ante, col. 1673. " For and on Behalf of."] — See West London Commercial Bank v. Kitson, ante, col. 1519. "For the Purposes of the Act."] — See Grand Junction Caiial Compawg v. Petty, ante, col. 1974. "Formal Defect."] — See Johnson, Ex parte, Johnson, In re, ante, col. 102. " Forthwith."]— .S«' Furler v. CoVb, ante, col. 251, and Lowe v. Fox, ante, col. 1825. "Free of Legacy Duty."] — ^Seeante, col. 1578. "Free from all Deductions."]— /&c Higgins, In re, Day v. Turnell, ante, col. 1576. "Free from Particular Average under Three per Cent."] — See Stewart v. Merchants' Marine Insuranoe Company, ante, col. 1015. "Future Debt or Liability."] — See Linton, Ex parte, Linton, In re, ante, col. 143. "Frequenting."] — See Clarlt v. Reg., ante, col. 1925. "Frost Preventing the Loading."]~&'e Grant v. Coverdale, ante, col. 1678. " General Line of Building."] — See Spaehman T. Plumstead Board of Works, ante, col. 1210. "Good Cause."] — See ante, col. 521. " Goods."] — See Reg. v. Slade, ante, col. 18. "Heirs or Assigns."] — See Dynevor (^Lord) V. Tennant, ante, col. 674. "House."] — See Kerford v. Seaeombe, ^c.. Railway and Barnes v. Southsea Railway, ante, col. 1116, and Wright v. Ingle, ante, col. 1218. "If he shall think fit."] — See Abergavenny (^Marquis') v. Llandaff {Bishop"), ante, col. 690. " In Port."] — See Hunter t. Northern Marine Insurance Company, ante, col. 1010. " In lieu of."] — See Reg. v. Sussex County Court Judge, ante, col. 110. " Incendiarism."] — SeeWalher v. London and Profincial Insurance Company, ante, col. 1007. " Incidental to."] — See LleweUin, In re, ante, col. 1634. " Improper Navigation of Ships."] — See Car- inichael t. Liverpool Sailing Ship Owners' As- sociation, ante, col. 1012. "In or Hear."] — See Att.-Gen. v. Horner, ante, col. 1179. " In or At."] — See Bownshire {Marquis') v. O'Brien, ante, col. 1179. " Income."] — See Benwell, Ex parte, Hutton, In re, and Webber, Ex parte, ante, col. 138. " Injuriously affecting."] — See ante, col. 1118. "Innocent Shippers."] — See Brooking v. Maudslay, ante, col. 1019. " Interest in Land."] — SeeLavery v. Purssell, ante, col. 472 ; Thomas, In re, Thomas v. Howell, ante, col. 919. " Interested in Contract."] — See ante, col. 876. 2133 WOEDS. 2134 " Inteival of not less than Fourteen Days."] — See The Railway Sleepers Supply Company, In re, ante, col. 1825. ' ' Intimidation." ] — See Judge v. Bennett, ante, col. 567. " Judgment or Order."] — See JSaslam En- gineering Company v. Hall, ante, 27. "Issue any Note."] — See Att.-Geii.Y. Birh- heclt, ante, col.'81. "land."] — See Wright v. Ingle, ante, col. 1218. " last Place of Abode."] — See cases ante, col. 212. "Lease."] — See Swain v. Ayres, ante, col. 1103. " legal Notice to Quit."] — See Friend v. Shaw, ante, col. 547. " Lodger."] — See Heawood v. Bone, ante, col. 1097. "Lower Bates."] — See Glasgow and South- Western Railway v. MacMnnon, ante, col. 292. " Maliciously."] — See Reg. v. Latimer, ante, col. 582. " means to Pay."]— &e Koster, Ex parte, Parli, In re, ante, col. 608. " Minerals."] — See Midland Railway y. Ro- limon, ante, col. 1546 ; Glasgow {Lord Prmost) T. Farie, ante, col. 1226 ; and Att.- Qen. v. Welsh Granite Company, ante, col. 1225. "Moderate Speed."] — See cases ante, col. 1686. "Molestation."] — See Fearon v. Aylesford (_EarV), ante, col. 912. " Nominee."]— i re, AinsUe D. Ainslie 1610 Swinburn v. Ainslie . . ; 790, 1824 Airey v. Bower 615,2097 Akankoo Mining Co., In re 438 Albion Mutual Permanent Building Society, Inre 441 Alcock ■», Leeuw 1664 Alderson ■;;. Elgey 1280 Alderton T. Archer 1203 Aldridge's case 507 Aldridge, In re, Abram v. Aldridge 10 1). Aldridge 479,886 D. Feme 1086 Alexander, The 1695 - — 'U.Burke 706 . 1]. Calder, Wilson, Inre ... 763, 802 «). Cross, Cousins, 7?J re 797 . 1). JoUey, Hutchinson, J?j re ... 2101 Alford, In re, Hunt or Hurst v. Parry 2123 Alison i>. Charlesworth 1070 Alfred, The 1712 Allam, Ex parte, Munday, In re 246, 257 Allan V. Hamilton Waterworks Commis- sioners 1568 D.Pratt 339 -o. Regent's Canal, City and Docks Ry 402,1749 Allcard v. Skinner 1922 Allen's case 383 Allen, Jm re 1764, 1765 J?i re, Simes D. Simes 1487,1918 D.Allen 768, 889 D. Coltart 1663,1667 TABLE OF CASES. Allen ». Longstaffie 2115 V. Norris, Norris, I/i re... 1740, 1914, 1918 V. Quebec Warehouse Co 339 «. Taylor, Gyhon, J» re 1450 AUestree, Ex parte, Clarkson, In re 182 Allgood v. Merrybent and Darlington Ky. 1541, 1950 AUhusen i;. Brooking 833,1807 AUiance Society, In re... 432 Allingham, Tw re 1754 Almada and Tirito Co., In re, Allen's case 383 "Alpine" Trade-mark, In re 1840, 1849 Altrincham Union v. Cheshire Lines Com- mittee 1373, 1803 Ambler's Trusts, In re 1913 Amersham Union v. City of London Union 1383 Ames, J» ?'e, Ames r. Taylor 1780 Amos r. Heme Bay Pavilion Co 1408 Amstell u Lesser 1492,1539 Andalina, The „ 1656 Anderson's Trade-mark, J» »•« 1843 Anderson, ^aj ^a?'ie, ToUemache, J«. re ... 149, 747 V. Commercial Union Assurance Co 1006 ■(). Dublin Corporation 529,854 jj. Ocean Steamship Co 1716 Andrew v. Williames, WiUiames, In re ... 787, 1894 Andrews, Ex parte, Andrews, In re 113 Ex parte, Wilco^on, In re 145 J?s re, Edwards ■!). Dewar 928 •U.Andrews 2021,2026 ■D.Barnes 538 D. Cox 835 «. McGufiEog 312,1598,1599 ■». Patriotic Assurance Co. 1007, 1478 Angell, i?i re, Shoolbred, ^a; jja?'. Arcedeokne . . . 1535 Arch 1). Bentinck 720 Archer v. Prall, Smeed, In re 972 Ardanhu, The 1696 Arden, Ex parte, Arden, In re ... 150, 204, 207 V. Arden 628, 1255, 1309 ('.Deacon 150,204,207 Argentine, The 1700 Argus Life Assurance Co., In re 1004 Argyle Coal and Cannell Co., In re, Wat- son, Ex parte 450 Arina, The 1654 Arklow, The 1682 Armfield v. London and Westminster Bank 79 Armour ». Walker 757 Armstrong, Ex parte, Armstrong, In re 134, 922 • In re, 'Bojdi, Ex parte 134 In re, Gilchrist, Ex parte... 41, 134, 922 ■B.Armstrong 2047 ■!). Milburn 1142 Army and Navy Hotel, In re 414 Arnal, Ex parte, Witton, In re 120, 121 Arnaud, Ex parte, Bullen, In re 182 Arnison i;. Smith 345,350 Arnold, In re, Eavenscroft v. Workman 307, 2121 Arnot's case 449 Arnott ■!). Hayes 750 Arrowsmith r. Dickenson 1386 Ashburnham's Trust, In re 1901 Ashbury i;. Watson \ 398,1956 Ashby r. Costin 832,998 1). Day 738,1527 D. Hincks 1824 Ashcroft, In re, Todd, Ex parte 160, 1807, 1808 Asher ij. Calcraft 694 Ashworth t). Lord 1281 ■!). Munn 2120 Askew v. Askew 2028 ■B.Lewis 234 Askin 11. Ferguson, Lindo,7» re 2106 Aspey I'. Jones 547 Asphaltic Paving Co., In re, Lee and Chap- man, ^a; _p(M'ie 427,491 Asquith^. Griffin 1561 Aste V. Stumore 654, 754, 1669 Atherley ■«. Bamett 1253 ■B.Burnett 1253 Atkins V. Arcedeckne, Arcedeckne, In re... 1535 Atkinson, In re, Atkinson ■b. Bruce 1622 ». CoUard 596,708 -B. L'Estrange 2056 TABLE OF CASES. Atkinson v. Powell, York, In re 210 Attenborough's case, Cunningham & Co., In re 226 Att.-6en. v. Ailesbury (Marquis) 1577 u Anderson 696 1). Barry Dock and Ey 1545 «. Birkbeck 81 V. Blackburn (Corporation) 514 r. Bradlaugh ... 25,27,743,751,985, 1316, 1474, 1806 V. Heywood 1560 V. Homer... 621,1178, 1179, 1180, 1804 ■». Hubbuck 1576 ■». Leonard 695 I'. Llewellyn 42,1492 r. Maule 1573 «. Montefiore 1575 'B.Murray 1577 ■». Welsh Granite Co 1225 (Duchy of Lancaster) v. Devon- shire (Duke) 984, 1074 (Nova Scotia) ■». Gregory 338 (Quebec) -». Bead 325 (Queensland) v. Gibbon 320 (Straits Settlements) ■». Wemyss 337, 1608 Augusta, The 1680 Auld ■». Glasgow Working Men's BaUding Society 273 Austen v. Collins 1488, 2077 Austerberry v. Oldham Corporation ... 623, 853, 1080, 1974 Autothreptic Steam Boiler Co., In re ... 55, 535 Avaid, In goods of 561,2009,2010 Avenir, The 1723 Avery's Patent,jfjire 1350 Aylesford Peerage, The 743, 744, 884 Aylesford's (Earl) Settled Estates, In re... 1634 Aylmer, In re. Bischofisheim, Ux parte 171, 1061 Ayres, Uib parte, Finsbury School Board Election, In re 41,1592 Ayshford, In re, Lovering, & parte 166 B. Babington v. O'Connor 1092 Back D.Holmes 1215,1977 Backhouse v. Alcock 764 Bacmeister «. Fenton 1521 Bacon's Will, In re. Camp v. Coe 2017 Bacon «. Camphausen 1878 ^. Ford, Kensington (Lord) Inre ... 1061 Badcook, Ex parte, Badcock, Inre 180 Baddeley v. GranvUle (Earl) 1198, 1811 Badeley v. Consolidated Bank 70, 774, 1243, 1325, 1534 Badische Anilin und Soda Fabrik v. Levin- stein 1340, 1348, 1349 Bagley «. Searle 1507 awe r. Canning 1998 ;er. Ex parte, Bagster, Inre 175 Bahin v. Hughes 914, 1529 Bailes v. Sunderland Equitable Industrial Society 965 Bailey v. Badham 702 V. Bailey 901, 1422, 1811 Baillie ■!). Goodwin 1410 Baines v. Geary 485 «. Toye 966 V. Wright 176 Bairdo). Thompson 1402 Baker, .Kb ^arie, Baker, Z» re 104 Ex parte, ^Aog&on, In re 1757 In, re,'&2!&SiY, Ex parte 104 ire re, Connell ■!). Baker 765 ■». Baker 457,797 D.Hedgecock 481, 485 V. Monmouth Town Council 711 V. The Theodore H. Rand 1682 Bala and Festiniog Eailway, In re 1129 Baldry r. Bates 1514 Balgooley Distillery Co., In re,Weekes's case, 401 Balkis Consolidated Co., In re 388, 619 Ball, Ex parte, Hutchinson, In re 163 Inre, Slattery d. Ball 2047 BaUard r. TomUnson 1312 Banbury and Cheltenham Direct Ey. v. Daniel. 264, 1542 Bank of Africa v. Colonial Government ... 329 of Ireland, Ex parte, S., In re... 142, 1001 ■ y. Brookfield Linen Co.... 1307 of Montreal v. Sweeny 76, 327 of New South Wales «. Campbell ... 319 of Toronto i;. Lambe 324 Bankes-i). Small 816, 1797,1822 Banks «. Mansell 709, 1923 Banu Navigation Act, In re, Olpherts, Ex parte 1770 Bannatynei). Direct Spanish Telegraph Co., 375, 376 Banque Jacques Cartier «. Banque d'Epargne 476,1955 Bansha Woollen Mills Co., In re 238,366 Banshee, The 1686, 1688, 1729 Barangah Oil Eefining Co., In re, Arnot's case 449 Barber's Mortgage Trusts, In re 1904 Barber, In re 1917 In re. Burgess v. Vinicome 807, 813, 1779, 2003 In re, Stanford, Ex parte .. .237, 238, 240 In goods of 1003,2013 V. Houston 1 1143 v. Tebbit, Appleton, In re 2021, 2030 Barham«. Ipswich Dock Commissioners .., 1?|77 Barings. Ashburton 2Q71 Barker's Trade-mark, In re 1851 3 Z TABLE OF CASES. Barker «. Lavery 19 V. Purvis 1481 i>. Vogan 1429 Barlow, In re, Barton v. Spencer ...40, 319, 1161 In re, ThombtT, Ux parte 173 V. St. Mary Abbott's Vestry... 1210, 1211 ■». Teal 1107,1805 Barnaoott v. Passmore 818 Barnard, In re, Barnard v. WTiite 1035 In 7-e,Edwards«.Barnard217,804,1326 V. White, Barnard, In re 1035 Barne, Ux parte, Barne, In re 96 Barnes 1). Southsea Ey 1116 D. Toye 966 Bamett, In re, Reynolds, Exparte 86, 193, 196 11. South London Tramways Co 1515 Barney v.. United Telephone Co 1B54 Barnstaple Second Annuitant Society, In re 481, 752 Baron Aberdare, The 1024, 1444, 1725 Liebig's Cocoa and Chocolate Works, Inre 441 Barr?;. Harding 1276, 1455, 1486 V. Kingsford 247 Barraclough.D. Shillito 1617 Barrington, In re, Gamlen v. Lyon 1228, 1615 Barron «. Ehlers 158 Barrow ■!). Dyster 753,1520 i>. Myers 1416 ■». Smith 1273 Hematite Steel Co., Jw »■« 377 Mutual Ship Insurance Co. v. Ash- burner i 393, 737, 1021 Barrs-Haden's Settled Estate, In re 1626 Barry 1). Quinlan 811 Barter, Ex parte. Walker, Inre 1 34, 263 Bartlett v. Northumberland Avenue Hotel Co 422 Barton v. London and North- Western Ey. 1462 V. North Staffordshire Ey. ... 389, 733, 760, 778, 1144 V. Spencer, Barlow, In re 40, 319, 1161 - 1!. Taylor 318 Eegis Guardians v. St. Pancras 1384 BBsaa, Ex parte, Yoste.1, Inre 114 Batcheldor v. Yates, Yates, In re 227, 1258 Batchelor 1). Fortescue 1298 u Yates, Yates, Jm TO 227,1258 Bateman «. Ball 408 V. Poplar Board of Works ... 8, 1210, 1216 Bates, In re, limdse^. Ex parte 106, 112 . t;. Moore 1430 Bath; Ex parte, Phillips, Inre 141, 272 Bathe, Jra TO 1903 Batten v. Wedgwood Coal and Iron Co. '- 431, 1746, 1786 BSfttersby's Estate, Inre 2091 Batthyany, In re, Batthyany d. Walford ... 1464 Batthyany v. Walford 803, 1033, 1401 Batthyany, Inre... 1464 Baudains v. Jersey Banking Co 338, 339 Bax V. Palmer, Knott, Inre 1897 Baxendale «. De Valmer 748 Bayley and Hanbury's case 449, 1200 0. Great Western By 620, 672, 1117 Bayly 1). Went 1263 Baynes, Ex parte, Clarke, In re 207 Baynton ■». Collins 924 ®. Morgan 1105,1529 Beal V. Exeter (Town Clerk) 706 Beale, In re, Durrani, Exparte 1521, 1588 Beamish v. Cox 1099 Bean D. Wade 1141 Bear, In re. Official Eeceiver, Ex parte ... 164 Beard, In re, Simpson v. Beard 2070 Beatty v. Leacy 1499 Beaty-i). Glenister 1067 Beauclerk v. James, Brooksbank, In re ... 2109 Beaumont's Settled Estates, Inre 1631 Beanpr6's Trusts, 7ra TO 924 Beavani). Beavan 1819,2125 Beaven, In re, Beaven v. Beaven 44, 2069 Beckett ■». Manchester Corporation 1191 ■!;. Ramsdale, Hodgson, J» TO 728, 754, 805, 807, 1329 «. Tasker 927 Bedborough v. Army and Navy Hotel Co. 57 Beddington i;. Atlee 676 Beddy*. Courtnay 2042 Bedingfield, In re, Bedingfieldi;. D'Eye 1781, 1892 Bedson's Trusts, In re 2039 Beesty, Exparte, Lowenthal, In re 84 Beeswing, The 39, 1653,1654 Beetham, In re, Broderick, Ex parte 475, 1242 Belfast Town Council, In re, Sayers, Ex parte 2029 Belfort, The 751,1557,1663 Bell's Estate, J» TO 828,983 Bell, In re, Carter v. Stadden „. . . 773, 1255 Inre, Lake «. Bell 1139 ■!;. Denvir 1801 v. Stockton Tramways Co 1862, ] 978 • — - V. Sunderland Building Society 1249, 1280 Bellairs v. Tucker 346 Bellamy, In re. Elder v. Pearson 913 Bellcaim, The 1479, 1480, 1697 Belt ij.Lawes 1475 Benares, The 1687 Beudelow ?). Wortley Union 1311 Beninfield i>. Baxter 330,779 Beningtou v. Metropolitan Board of Works 1117 Benn, Jra re, Benn r. Benn 2028 Benson's case ; 448 Bent V. Lister 1055 Benthall v. Kilmorey (Earl) 315 Bentinck, Ex parte, Branksea Island Co., Tnre 387,436,447 TABLE OF CASES. Bentinok Steamship Co. v. Potter 1691 Bentley, J»re, Wade 4). Wilson 1621,2062 D. Vilmont 572,577,1185 Benwell, Ucc parte, Button, In re 133 Benyon, Jm re, Benyon «. Grieve 2036 Beren's Settlement Trusts, In re 948 Berens D. Fellowes 1618,1821 Bei^, Use parte, South City Market Co., Inre 1126 Beridge, Z?i re 1165 Berkley ■!). Thompson 212 Berner, Ex parte, Laine, In re 147 Berners v. BuUen-Smith, Bullen-Smith, In re 1027, 1484 Bernina, The 1287, 1647, 1671, 1697, 1698 Berridge c. Man On Insurance Co. ... 482, 1010 Bertie, The 1705 Beryl, The 1687, 1688, 1724 Besley r. Besley. 1404 Best «. Applegate 1273 Beswick, In re, Hazlehuist, Ex parte 86 Beta, The 1686 Bethell, In re, BetheU v. BetheU 222, 1142, 1146 Jto r«, BetheU i;. HUdyard 882,1036 V. Bethell, Bethell, In re ... 222, 1142, 1146 u Clark 1585 V. Hildyard, Bethell, Inre ... 882,1036 Bethlehem and Bridewell Hospitals, In re 1128 Bettesworth and Richer, i» re 866 ■!). Allingham 511,1069 Betts V. Armstead 848 V. Betts, Symons, In re 1400 Bevan's Trusts, i» re 2051,2080 Bevan v. Bevan 1620 V. Carr 473 Bew, Inre, Bull, Ex parte 1108 Beyfus, Exparte, Saville, In re Ill and Masters, Xra re 1928 Bianchi ■!). Offord 243 Bice V. Jarvis 70, 594, l.?65 Bickers®. Speight 1409 Bickerton v. Walker 1245 Bidder «;. Bridges 3,660,747,759 Biegel's Trade-mark, Inre 1851 Biggart). Eastwood 782, 811, 2016, 2119 Bigwood •». Bigwood 892 Billing v. Brogden, Brogden, In re ... 794, 1891 BnUngton D. Cyples 214 Binney ». Mutrie 1336 Birch, In re. Roe v. Birch 788,1073 Birch's Trustees, Inre 972 Bird and Barnard, Inre 2063 V. Andrew 38 i;. Eggleton 1133 ■». Gibb 1709,1711 ■». Greville (Lord) 488,1110 ». Ponsford 1133 ■!). Wenn 1282 Birkbeck ®. BuUard 720, 721, 722 Birkenhead (Mayor) v, London and North- western Ry 861,1120 Birmingham and Lichfield Junction Ey., Inre ". 1320 Banking Co. v. Ross 676, 1200 Land Co. v. London and North- Western Ry. ... 38,1113,1124, 1396, 1458, 1461 Birrellr. Dryer 742,1014 BischofEsheim, Exparte, Aylmer, Inre ... 171, 1061 Biscoe r. Jackson 308 Bissell «.Fox 219 Bissett «. Jones 1270, 1420 Bjorkman v. Kimberley (Lord), Currie, In re 1579, 2106 Bjorn, The 1444, 1723 Blachf ord, J?i re, Blachford ». Worsley ... 791 Black, In goods of 2009 i>. Ballymeua Commissioners 682 Blackburn «. Haslam 1014, 1512 I'. Vigors 1013,1511 Corporation v. Micklethwait ... 867 District Benefit Building Society V. Brooks 269 Blackett ». Blaokett 526,907 Blackball?). Blackball 900 Blackie 4). Osmaston 1436 BlaibergB. Beckett 249, 251 u Parsons 249,252 Blair «. Cordner 1022,1435,1753 •». Deakin 1313 ■». Eisler 538,1733 I). Stock 1840 Blake, In re, Jones v. Blake 802, 811, 1881 v.Gale 794,1155,1279,1957 ■». Gale, Gale, 7m re 1141 r. Harvey 1491 «. Hummell 1752 u. KeUy 864 D. London (Mayor) 1564 Blakeway, In re, Rankart, Ex parte ... 132, 201 Blakey D.Hall '. 536,989,1490 Blanche, The 1657 Blanchett, Ex parte. Keeling, In re 105 Blank ■!). Footman 1858 Blantyre (Lord) D. Babtie 1960 Blashill t!. Chambers 1211 Blease, Ex pa/He, Blinkhorn, liire 208 Blenheim, The 1675, 1693, 1700 Blenkam v. LongstafBe, Longstafie, In re Ifii Blinkhorn, Jm re, Blease, ^iB^arte 208 Blockley, In re, Blookley v. Blockley ... 10, 945 Blosse D. Wheatley 717 Blount «. O'Connor 775,776,800 Blower D.ElUs 819 BloxamaFavre 1029,1993 Bluck, Ex parte, Bluck, In re 151 3 z 2 TABLE OF CASES. Bluck ». Lovering 1786 Bluett, In Goods of 2008 Blundell, In re, Blundell v. Blundell 1749, 1781, 1877 «. DeFalbe 955 Boaler v. Holder 1171, 1465 ■B.Reg. 594,641 Board of Trade, Ex parte, Bruimer, In re 198 . Ex parte, Chudley, In re 92 Ex parte, Games, In re 91 Ex parte, GfW., In re ... 118 Exparte,'Re3,'p, In re ... 180 Ex parte, Margetta, In re 93 Ex parte, Martin, In re 91 Ex parte. Mutton, In re 182, 205 Ex parte, Pearce, In re 92, 194 Ex parte, Trjoi, In re ... 199 Ex parte, Rogers, In re 92 Ex parte, Rowlands, In re 94 Ex parte, Strand, In re 200 Exparte,&t3,mtoT:i,Inre 202 Ex parte, Taylor, In re 89 K. Block 184,189 Boarder v. Lindsay 654 Boddington, In re, Boddingtou v. Clairat 2033 V. Rees 1465 Bolingbroke D. Hinde 1269 Bollard D. Spring 732 BoUen ®. Southall 714 Bolton, In re. Brown v. Bolton 2022 In goods of 1994 Estates Act, In re 1689 d. O'Brien 636,1475 Bombay Civil Fund Act, In re, Pringle, Exparte 964 Bompas 1). King 1264 Bond, In re. Official Receiver, Ex parte . . . 104 V. Evans ;.. 1054 i;. Walford 626,963 Bonella v. Twickenham Local Board 860 Bongiovanni t). Soci6t6 G6n6rale 1813 Bonbam, Ex parte, ToUemache, In re ... 149 Bonner, In goods of 1994 Bonnie Kate, The 1648,1649 Booker, In re, Booker v. Booker 791, 2108 Boote V. Dutton, Peroival, In re 1996 Booth -!). Smith 1555,1556 V. Trail, Hayson, 2n re 70 Borlick ®. Head 1198 Bomeman ^. Wilson 94,1403 Borthwick 1). Ransford 1485,1828 Bortick v. Head 1198 Boston Deep Sea Fishing Co. I). Ansell ... 1187, 1188, 1189, 1525 Bosvilew. Att.-Gen 742, 884 V. Bosvile 909 Boswell V. Coaks 529, 533, 540, 765, 1395 Bouch 1). Sproule 399 Bourgoise, /ffl re 1025 Bourkeu. Donoghue 1278 ■». Nichol 1500 Bourne, In re, Bourne v. Brandreth 2071 In re, Rymer v. Harpley 2046 V. Coulter ' 1**6 ,). Netherseal Colliery Co 1230 Bournemouth Commissioners v. Watts 869 Bouron, In re, Brandon, Ex parte 1484, 1754 Bousfield V. Dove, Dove, In re 185, 1493 Bovill D. Gibbs 1212 Bowohier v. Gordon, Tucker, In re 2042 Bowden v. Besley 508 V. Layland, Marsden, In re... 789, 1140, 1955 Bowen i>. Lewis 2062 Bowes, In re, Strathmore (Earl) v. Vane... 78, 787 Bowesfield, The 1722 Bowie V. Ailsa (Marquis) 20 Bowker 17. Evans 45,1401 Bowles ■». Hyatt, Hyatt, In re 789, 1140 Bown, 7re re, O'Halloran «. King 937 Boxall 1). Boxall 778,918,2013 Boycott, i« re 1758 Boyd, Ex parte, Armstrong, In re 134 In re 163 «. Allen 1322 V. Farrar 1346 Boyes, In re, Boyes v. Carritt 1869, 2091 Boyle's case 453 Boyle D. Saoker 1396,1414,1494 Boyse, In re, Crofton «. Crofton 215, 216, 221, 223, 1142, 1557 Bradbrook, In re, Lock v. Willis 1818 Bradbury B. Cooper 636,1438 Bradford (Mayor), Ex parte, Hargreave's Trust, Jk re 1128 Inre 541,1744 ■». Young 1027,2012,2016 u. Young, Falconar's Trust, In re 36 Banking Co. r. Briggs 385,1257 Banking Co. v. Cure, Clough, In re 34,1236,1326 Bradlaugh «. Gossett 1315 Bradley, In re. Brown v. Cottrell 954 In goods of 2007 ■». Price 819 Bradley's Settled Estate, In re 1907 Bradshaw, In goods of 2012 ■!). Jackman 2083 1). Warlow 562,1473 Bradwell, Ex parte, Norman, In re 1760 Brady, Jre re 112,1168 1). M'Argle 15 Bragger, In re, Bragger v. Bragger 2043 TABLE OF CASES. Brame, Ea; parte, Dublin Grains Co., In re .' 415 Braintree Local Board ». Boyton 862 Bramlett v. Tees Conservancy Commis- sioners 1972 Brandon, Ex parte, Bouion, Inre ... 148i, 1754 Ex parte, Tieach, Inre 97 Brandon's Patent, Zm re 1351 Brandram, J« re '. 1129 Branksea Island Co., In re, Bentinck, Ex paHe 387, 436, 447 Branston v. Weightman, Hall, In re 2024 Brasnett's case 42,427 Bray u Gardiner 1342 ii. Lancashire JJ 1566 Brennan «. Dorney 1058 Brentford and Isleworth Tramways Co., Inre 411,1863 Breretou v. Edwards 772, 1496 Brewer «. Brown 1936 Brewster D. Prior 791,1868 Briant, In re, Poulter v. Shackel 786, 918 Bridewell Hospital and Metropolitan Board of Works, J» re 1764 Bridge, In re, Franks v. Worth 1485 Bridgend Gas and Water Co. v. Dunraven 1111 Bridger'W. Savage 835,1525 Bridges v. Dyas 1445 ■». Miller 713 Bridgetown Waterworks Co. ■». Barbados Water Supply Co 1447 Bridgewater Navigation Co., Inre 383, 429 Brien «. Sullivan 1476 Brier, In re. Brier v. Evison 788, 1890 V. Evison, Brier, In re 788, 1890 Brierley Hill Local Board v. Pearsall 873 Brigg r. Brigg 950 Bright ■!). Campbell 1265 Bright-Smith, In re, Bright-Smith v. Bright- Smith 2066 Brightmore, In re. May, Ex parte 110 Brighton Livery Stables Co., In re 37, 527 Brindle, Ex parte, Brindle, In re 132 Brindley, Ex parte, Brindley, In re 132 v. Cilgwyn Slate Co 1587 Brinton v. Lulham,Lulham, Jra re.. .827, 952, 1867 r. Maddison 178 Brisley, TJi re, Fleming D. Brisley 2058 Bristol (Guardians) «. Bristol (Mayor) ... 1380 (Mayor) o. Cox 650 Steam Navigation Co. «. Indemnity Mutual Marine Insurance Co 1018 Waterworks Co. D. tJren 1966 British and Foreign Contract Co. v. Wright 645 Burmah Lead Co., In re, Viokers, Ex parte 344 British Commerce, The 1699 British Empire Match Co., In re, Boss, Ex ■ parte 382 British Empire Mutual Life Assurance Co. V. Southwark and Yauxhall Water Co 1967 Land and Mortgage Co. of America, Inre 378 Mutual Banking Co. v. Oharnwood Forest Ey 1515 Briton Life Association, Inre 1004 Medical and General Life Assurance Association, In re 354, 419, 1005 Brittain «. Overton 315 Brittlebank «. Smith 761 Broad, Ex parte. Neck, Inre 127 Inre 1778 v. Perkins 1538 Broadbent v. Barrow, Ovey, In re 304, 309, 2115 V. Groves, Cockcroft, In re 2111 Broadwater Estate, Inre 1636, 1637 Broadwood's Trusts, Inre 1430 BrocklehuTst v. Manchester Steam Tram- ways Co 1861 Broderiek, Ex parte, Beetham, In re... 475, 1242 Brodribb v. Brodribb 13, 461, 896 Brogden, In re. Billing v. Brogden ... 794, 1891 Bromley, In re, Sanders «. Bromley 398 Brook®. Brook 894 Brooke, In re 120 In re, Mnsgrave v. Brooke 2074 BrookingD. Maudslay 992, 1019, 1505 V. Skewis 1277 Brooks, Ex parte, Speight, Inre 208 Inre 87 V. Blackburn Building Society 268 «. Hassell 1515 ■». London and North- Western By. 1293 Brooksbank, In re, Beauclerk v. James ... 2109 Brosnan, .Efe^arfe 24 Brough, In re, Currey v. Brough 1996 Broughton, In re. Peat v. Broughton 191, 2077 Coal Co. ■«. Kixkpatriok 1570 Brown, Ex parte, Evans, Inre 1756 Ex parte, ImoAs.Vl, Inre 204 .. Ex pa/rte, Bmifii, In re 71,94,152,613 Ex parte, Sheflneld and Watts, In re 85, 1396, 1790 Ex parte. Wise, Inre 88, 208, 209 Inre 978,1159 . In re, Brown v. Brown 1877 In re, Dixon v. Brown 1232, 1888 In goods of 2010 1). Alabaster 670 «. Bolton, Bolton, J» re 2022 r. Brown, Brown, Jre re 1877 ■!). Burdett 524,811,2115 . ■». Butterley Coal Co 1191 V. Collins 977 . r. Cottrell, Bradley, /m re 954 «. Great Western Ey 1288, 1291 TABLE OF CASES. Brown v. Inskip 1952 0. Zough 131 «. Liell 654 ?, Noyce, In re 2051 jj. Watkins 644 — ■!). Watt 1571 Brown's WUl, In re 1627, 1631 Browne D. La Trinidad 402,404 ■». Netlierseal Colliery Co. 1230 Browne's Estate, In re 1456, 1736 Brownscombe i;. Fair 195 Bruce «. Everson 1136,2136 Brunner, In re, Board of Trade, Ex parte . 198 Bruno, In re, Francis, Eai parte 1586 Brunsden d. Beresford 265 ■B.Humphrey 728,1864 I). Staines Local Board 49,265 Bryans *. Hughes 1411 Bryant, In re 1744 ■». Eeading 25,43,1044 Bryden D. Niebuhr 1665,1677 Bryon, In re, Drummond v. Leigh ;. 2024 Bryson*. Kussell 7, 17, 1366, 1466 Buccleuch's (Duke) Estate, In re 1624 Buchanan «.;;Hardy 583,1169 Buckingham v. Whitehaven Trustees 1317 Buckle v. Lordonny 275 Buckley, In re, Ferguson, Ex parte 1769 ■B.Buckley 2091,2112 Bucknill 1). Morris, Morris, J» re 1877 Budd •». London and North- Western Ky . . . . 298 Budden, Ex parte, TJnderhill, In re 198 Bull, Ex parte, lBew,In re 1108 In re. Catty v. Bull 2113 BuUen, In re, Ainaud, Ex paHe 182 BuUen-Smith, In re, Bemers ■b. Bullen- Smith 1027,1484 BuUers ■!). Dickinson 680 Bullock, Ex parte, Gamett, In re 189 In re 1163 B.Bullock 1889 Bulman v. Young 652 Bulmer ■b. Buhner 1303 Bulwer-Lytton's Wm, J» re 1636 Burden, In re. Wood, Ex parte 85 Burdett, In re, Byrne, Ex parte 237, 418, 1806 Burford v. Unwin 1085 Burge, In re, Gillard v. Lawreuson 1140 Surges «. Bristol Sanitary Authority 879 Burgess, Ex parte. Burgess, In re 190 /« re. Burgess 1). Bottomley 981 ■B.Clark 876 D.Gillespie 178 V. Vinnicome, Barber, In re ... 807, 813, 1779, 2003 Burke, 7» re 127 -B. Gore 1629 Burlinson ?). Hall 62 Bum ??. Herlofson 1658 Bumaby v. Equitable Eeversionary Lite- rest Society 967, 1820, 1936 Burnett v. Great North of Scotland By. ... 1543 Burns i>. Bryan or Martin 1603 Burr ■B. Wimbledon Local Board 63, 1404 Burra ». Ricardo 1812 Burrows v. Holley 627 Burry Port and Gwendreath Valley Ey. Inre 371 Bursill V. Tanner 756,930,1423,1734 BuTstall ■B. Beyfus... 644, 1408, 1424, 1463, 1749 ■B.Bryant 1045,1474 ■«. Fearon 1402 Burton ■B. Acton 859 ■B.Bradley 852 ■B.English 1664,1717 Bury (Mayor) v. Lancashire and Yorkshire Ky 1545 Busfield, In re, Whaley v. Busfield 1484, 1809 Bush 1], Whitehaven Trustees 467 Bushell, In goods of 1998 ■B. Pocook 464 Bushire, The 1671 Butchers. Pooler 527,543 Butchers' Company, /ffl re 1133 Bute (Marquis), In re, Bute (Marquis) v. Eyder 1612,2037 (Marquis) ■B. James 760 Butler's Trusts, In re, Hughes v. Anderson 9, 883, 1820 Butler u Butler 13,460,896,915,2066 ■». Manchester, Sheffield and Lin- colnshire Ey 283 V. Wearing 71,156 Buxton and High Peak Co. ■B. Mitchell ... 480 Bygrave v. Metropolitan Board of Works... 1117 1800 Byrne, Ex parte, Burdett.Jn re... 237, 481, 1806 In re, "Ka^es, Ex parte 1156 Li goods of 1166,1387,2010 Byron's Charity, Inre 1124, 1688 C.'s Settlement, J» re 933 Cadman «. Cadman 975 Cadogan, In re, Cadogan v. Palagi 2067 Cahill ■B. Cahill 915 B. Fitzgibbon 1172 Caird ■!). Moss 624,726,1231 ■!). Sime 502 Caldicott, Ex parte, Hart, Inre 147, 153 Caldwell «. McLaren 327 Callaghan, Z» re, Elliott «. Lambert 977 — — In goods of 1999 V. Society for Prevention ot Cruelty to Animals 16 TABLE OF CASES. GaMaa, Hx parte, WMtley &0o., In re ... 360, - . 451,1512 Gallendar*. ■Wallingford..,.. 1462 Callow, Hx parte, Jensen, In re 125, 198 ■». Callow 918 ■». Young 66,67 Caloric Engine and Siren Fog Signals Co., Inre 407 Calton's WiU or Trusts, 7» re 1128 Calver D. Laxton, Jones, In re 785 Calvert -!>. Thomas 249,252 Cambefort v. Chapman 728, 1331 Camellia, The 1704,1712 Cameron, In re, Nixon v. Cameron ... 777, 2114 andWeUs, Jrare 829 Camp V. Coe, Bacon's Will, In re 2017 Campbell, Esc parte, Campbell, In re 97 Ex parte, Wallace, Inre... 169, 173 7» re, Campbell, ^(B ^arte 97 In re, Wolverhampton Banking Co., Ex pa/rte... 167, 168, 206, 484 Lord Colin, J?i re 190 ■B.Chambers 705,714 Campbell's Trusts, Inre 2027 Cann, In re, 'BMS.t, Ex parte 256 ■». Cann 1891 ■». Willson 825,1300 Canning B. Farquhar 995 Cannock and Eugeley Colliery Co., In re, Harrison, Ex parte 387 Capel V. Sim's Ships Compositions Co 347 Capital Fire Insurance Association, In re 420, 1784, 1905 Carden v, Albert Palace Association 436 CardifE Steamship Co. v. Barwick ... 538, 1708, 1728 Cardigan (Lady) ®. Curzon-Howe 1625 Cardinall D. Cardinall 57,1469 Cardwell (Lord) v. Tomlinson ... 653, 1167, 1406 Cargo ex Laertes 1662,1705 Ulysses 1706 Carling v. London and Leeds Bank ... 344, 348 Carlisle Banking Co. ■». Thompson ... 271, 1248 Carlton J). Bowcock 737,1105 V. Carlton, Watson, In re 1993 Carlyon, In re, Carlyon v. Carlyon 1485 Carmichael v. Liverpool Sailing Ship Owners' Association 1012 Camac, In re, Simmonds, Ex parte ... 95, 1232 Carnegie®. Carnegie 730, 899 Camelly, Ex parte, Lancashire Cotton Spinning Co., In re 423 Carpenter, In re. Carpenter v. Disney 2107 Carpenter's. Patent Davit Co., Inre 354 Carr, Exparte, Carr, Inre 115 — -." Jji.»fe,. Carr®. Carr 1892 — '-i- In. r£,.Caxi,JElx parte 115 Carriage Co-operative Supply Association, In re 427, 446 Carson «. Pickersgill ,-.... 527,1398 ■». Sloane 1887 Carshore D. North Eastern Ey. 1460,1461 Carter's case - 421 Carter, In re. Carter v. Carter.., 1783,1786 r ■». Carter, Carter, J»jre... 1783,1786 — — V. Drysdale 1191 ■». Mblsou 325 ■B.^tadden, Bell, 7«re 773,1255 B. White 221,1533 Carthew, Jwre 1761 Carus-Wilson, In re 52 Carvill, 7»re 93 Casey «. Hellyer 1409 Cassidy v. Belfast Banking Co 1445, 1999 Casson ®. Churchley 236,617 Castel iJ. Trechman 1667,1673 Castle, iw re 1762 Castle Mail Packets Co., Ex parte, Payne, In re 183, 188, 201 Cattley «. Loundes 578 Catton V. Bennett 1362, 1459, 1951 Catty V. Bull, Bull, In re 2113 Cave «. Harris 2086 ■B.Torre 1437 Cavendish ■». Cavendish 2070 V. Dacre, Chesham (Lord), In re 2106 Cavendish-Bentinok v. Fenn 359, 1524 Cawley v. National Employers' Assurance Association 996 Caygill ■». Thwaite 818 Cayley v. Sandycroft Brick, Tile, and Colliery Co 660 Cayzer «. Carron Co 1692 Cecil ■!). Langdon 1632,1914 Cella, The 1652 Central News Co. v. Eastern News Tele- graph Co 644, 754 Chadwickr. Ball 563, 1538 ■«. Bowman 648 Chaffers, In re, Incorporated Law Society, Exparte 1733 Chalk & Co. ■». Tennent 6, 443 Challender ■!!. Eoyle 1355*1356 Chalmers v. Wingfield, Marretfc, In re ...... 1027 Chamber Colliery Co. ■!;. Hop wood 682 Chancellor, In re, Chancellor v. Brown ... 776 Chandler, Exparte, Davison, i?« re ... 146, 1060 Chapel House Colliery Co., In re 413 ChapeU ■». Emson.... 850 Chaplin, Exparte, Sinclair, In j'e 100,144, 166, 826 Chapman, Jn re, Edwards, ^a; ^orfe 169 ijj re, _Ellick «. Cox 2030 /re re, Fardell 1). Chapman ,1487 In re, Johiisori, Ex ^arte 100, 236, 255, 260, 762 In re, Parker, Ex parte 143 and Hobbs, /« re 1944 lO TABLE OF CASES. Chapman v. Withers 559, 1584 V. Wood, Smith, In re 938 Chappell, In re, Ford, Mx parte 141, 465, 1529 . D. Charlton 1994 r «. Griffith 846,1336 Chappie, In re, Izard, Ex parte 125, 258 ' 2» ?'e, Newton ■!). Chapman 1780 Chailemont (Earl) v. Spencer 939, 1991 Charles, Ex parte. Tricks, In re ,.. . . 205 V.Jones 541,1260 Charles Jackson, The 1650 Charleston v. London Tramways Co. 1173, 1199, 1863 Charlesworth, Ex parte, Adam Eyton, In re 28,421,1895 Charlston «. Kolleston 1115 Charman D. South Eastern Ey 1293 Charrington, Ex parte, Dickinson, In re ... 155 Chase, In re, Cooler, Ex parte 182 Chatteris v. Isaacson 845 Chaytor's Settled EstateAct,J« re 537, 1626, 1634 Cheerful, The ; 1703 Chelsea Waterworks Co., In re 1127 . -0. Paulet 1964 Chepstow Bobbin Mills Co., In re 412, 416 Cherry c. Endean 299,1204 Chesham (Lord), In re, Cavendish v. Dacre, 2106 Cheshire Banking Co., In re, DufE's Exe- cutors' case 381, 787 Chester ®. Powell 1109 Chesterfield Corporation and Brampton Local Board, In re 56, 874 Chesterfield's (Earl) Trusts, im re 1819,2125 Chetwynd v. Morgan, Anstis, In re 962 Chichesteru Chichester 888 Chifferiel, In re, ChifEeriel v. Watson,. ..763, 1935 Childs V. Cox 713 Chillingtou Iron po.. In re, Mansell, Ex parte 407 Chinery, Ex parte, Chinery, In re 109 J» re, Chinery «. Hill 2049 Chisholm r. Holland 1364 Cholmoudeley's (Marquis) Settled Estate, 'in re 1636 Chorltou's Trade-mark, In re 1837 Ohowne, J» re .?: 1757 Christchurch Inclosure Act, In re 311, 341 Gas Co. •<;. Kelly 393,738 Christian «. Whitaker, Whitaker, Ja re ... 946 Christiansborg, The 1431, 1723 Christies. Barker 6, 466, 702, 1556,1812 Christison «. Bolam, Gregson, i?i re 1284 Christmas, In re, Martin v. Lacon 302 Christopher «. CroU 31 Chudley, In re. Board of Trade, Ex parte 92 Churchill (Lord), In re, Mauisty i;. Churchill 597, 1534 Chusan, The 1682 City Bank v. Sovereign Life Assurance Co. 999 City of Chester, The 615, 1709, 1710 Delhi, The 1692 Lucknow, The 533, 535, 1728 Civil Service and General Store, In re 436 Clagett, In re, Lewis, Ex parte 1022, 1060 Clan Grant, The 1681 Maodonald, The 1669 Clapham «. Andrews 1276 1). Draper 44,1093 Clarapede v. Commercial Union Association 1440 Clark, Ex parte, Clark, In re 172 ^ajjjarfe, Huntingdon Election, Jrere 510 Ex parte, Townseud, In re 225, 237 In re, Clark, Ex parte 172 In re, Clark v. Randall 2003, 2052 In re, Husband v. Martin 305 ■U.Clark 780,889,1886 V. Kandall, Clark, In re 2052 -0. Eeg 1925 V. South Metropolitan Gas Co 778 ■!). Wray 1503 Clarke, In re, Baynes, Ex parte 207 2» re. Combe I'. Carter 1240 i;. Bennett 659 V. Berger 1409 «. Buchanan 705,710 ■». Millwall Dock Co 1098 V. Somersetshire Drainage Commis- sioners 683, 1312 ». Thornton 1638 ■». Torish 710, 717 Clarkson, In re, AUestree, Ex parte 182 Class 1). Marshall 1337 Claxton 1). Lucas 554 Clay, In re. Clay v. Clay 2030 D. Coles 2047 Clayton, In goods of 2010 Mills Manufacturing Co., /are ... 31 Cleather v. Twisden 39,1327, 1760 Cleaver, J?t re, Rawlings, ^2! ^ari;e...239,249, 251 v. Cleaver 19, 897 Cleggu Baretta 548 ■». Clegg 806, 983 Clement, In re, Goas, Ex parte 179, 620 v. Cheeseman 2000 Clements u. Richardson 1095 V. Ward, Smith, In re, 303, 940, 1808, 1992 Clemson r. Townsend 240 Clench V. D'Axenberg mo «.Dooley 43, 1043,1044 Clerical, Medical, and General Life As- surance Society v. Carter 1004, 1568 Clerk i). British Linen Co 1565 Clery v. Barry 1741, 2OOO Cleverton v. St. Germain's Union 865, 1317, 1782 CliflEord «). Clifiord 910 Clitheroe, Ex parte. National Building and Land Investment Co., iit re 431 TABLE OF CASES. II Clitheroe Estate, J?J re 1624 Cloak V. Hammond, Taylor, In re... 2020, 2033 Cloghessy, In re, McDonald v. Cloghessy... 809 Close, Mx parte, Hall, In re 226 Clothworkers' Co., Etc parte, Finley, In re 121 Clough, In re, Bradford Commercial Bank- ing Co. V. Cure 3i, 1236, 1326 Clover v. Wilts and Western Benefit Build- ing Society 1280, 1451 Clune, In goods of 2013 Olydach, The 1689 Coaks ». BosweU 1489,1740 Coates to Parsons, In re 1913, 1914 ». Mackillop, Holburne, J» ?•« 303 Coatsworth «. Johnson 1076, 1103, 1795 Cobeldick, Ex parte 1746 Cobum». Collins 280,1504 Coch V. Allcock 757 Cock., In re, Siu]soTi., Ex parte 121 Cockcroft, In re, Broadbent r. Groves 2111 Cockerell v. Essex (Earl), Johnston, In re 1578, 2055, 2070, 2072 Coffins. Dyke 546 Cohen, Ex parte, Cohen, In re 184 In re, ?ichm\tz. Ex parte 108 Colam V. Pagett 15 Colbeck, In re, Hall v. Colbeok 1406 Cole V. Great Yarmouth Steam Tug Co. ... 464, 1713 r. Miles 1064, 1551 V. Saqui 22, 1348 Coles V. Civil Service Supply Association... 1462 v. Courtier, Courtier, In re ... 1818, 1881 r. Fibbens 864 Coleman, In re, Henry v. Strong ... 974, 1880, 2040 «. LleweUin 1274 V. West Middlesex Waterworks Co 1967 CoUedge v. Pike 1444 Collett «. Young 1091 Colling, Inre 1906, 1926 CoUinge's Settled Estates, Inre 1622 CoUingridge r. Emmott 503 Collingrove, The 1728 Collins, In re, CoUins v. Collins 2123 . 1!. Castle 266,987,1952 - V. ColHns 892, 894, 1601 V. , GoMms, In re 2123 CdWi-D&OTi., Ex parte, Gdihnson, In re 112 CoUis B. Lewis 558,1043 Colls D. Eobins 1487 Oolne Valley Water Co. v. Treharne 1963, 1967 Colombia Chemical Factory Manure and Phosphate Works, In re, Hewitt's and Brett's case 446 Colonial Bank v. Exchange Bank of Yar- mouth 1233 1). Hepworth 396,732 Colonial Bank v. Whinney 8, 124, 397 Building and Investment Associa- tion V. Att.-Gen. of Quebec 324 Insurance Society of New Zealand 1!. Adelaide Marine Insurance Co 339,1010,1011 Colonsay, The 1726 Colquhoun v. Brooks 1200, 1477, 1569, 1803 Colston V. Roberts, Fleck, In re 2112 Colverson 11. Bloomfield 612,1287 Colyer, In re, Millikin v. Snelling ... 1893, 2072, 2127 Combs, In re 1916 Comity des Assureurs Maritimes v. Standard Bank of South Africa 1866, 1920 Commercial Bank of South Australia, Inre 410, 417 of South Australia, In re, Commercial Banking Co. of Sydney, Ex parte 223 Banking Co. of Sydney, Ex parte. Commercial Bank of South Australia, Inre 223 Commissioner for Railways v. Brown 339 «j. Hyland 319 u. Toohey 320 Commissioners of Woods and Forests, Ex parte, Thomas, J?s re 119, 595 of Works, Ex parte,'Wood's Estate, In re 596, 1130, 1802 Compagnie du Senegal v. Woods or Smith 5 1 Compton, In re, Norton v. Compton 30, 38, 785 Comptroller, Ex parte, Thomas, In re 93 Concha II. Concha 726,763 Oonder, Ex parte, Woodham, In re ... 158, 1644 Condon i;. Vollum 979 Condyr. Taylor 1856 Coney, In re. Coney v. Bennett 769, 1453 Connan, In re, Hyde, Ex parte 106 Connell 1). Baker, Baker, J» re , 765 Conneryi). Best 464 Connolly ■!). Connolly 2056 u. Munster Bank 781 Conolan D. Leyland 927 Consolidated Credit Corporation v. Gosney 260 Telephone Co., J?i re 379 Constable®. Constable 979,1628 Contract and Agency Corporation, In re... 415 Conway 1). Fenton 1611 Coode 1). Johns 1109 Cook, In re, Dudgeon, Ex parte 124 v. North Metropolitan Tramways Co. 1190 Cooke's Trusts, J» re 1029 Cooke V. Cooke 2102 V. Eshelby 735, 1511 ^. New River Co 1964 V. Wilby 761 Cookes ». Cookes 1638 12 TABLE OF CASES. CooksoiH). Swire 234,258 Coombe «. Carter, Clarke, In re 1240 V. Vincent,. Stedman, Tk ?•« 1322 Coomber 1). Berks JJ 1566 Coombs®. Cook 1932 Co(jper, Ex parte,Cii3se, In re 182 ^aj^fljrfe, Knight, /m »■£ 143 Ma: parte, Morris, In re 140, 1186 Ex piirte,'Pe.Tiam^da, In re 826 J?j re, Cooper. «. Sligbt 10 v. Cooper ..;. 21, 1036, 1602 V. Davis 285 V. Metropolitan Board of Works 749, 844, 1125, 1241 V. Slight, Cooper, In re 10 V. Straker 677 r. Zeffert 236, 258 Coote V. Ingram 1469 V. Judd 503,504 Copeu Cope 48, 1333 Coppard, In re, Howlett v. Hodson 2038 Coppinger ?;. Shekleton 1897 Corbetti). Corbett 2053,2073 ■». Plowden 1262 Corbold, Ex parte. Progressive Investment and Building Society, In re 279, 433 Corkei). Brims 1565 Cormick V. Eonayne 71, 1784 Comford v. Elliott, Watts, In re... 301, 302, 616 Cornwall, In re 1441, 1754 -!). Saurin 40, 2114 Cornwallis, In re, Cornwallis v. Wykeham- Martin ; 2075 Corsellis, In re, Lawton v. Elwes 981, 1779 Cory!). Burr 1014 Cosby D. Shaw 1082 Cosmopolitan, The 1444, 1723 Cossman 1). West 1016 Coton, In re, Payne, Ex parte 239 Cottrell u. Cottrell 1639 Coulman, In re, Munby i>. Boss 2101 Coulson, Ex parte, Gardiner, In re 95, 944 Coulton, J» re, Hamling «. Elliott 1482 Coansell v. London and Westminster Loan and Discount Co. ., 254 Courtier, In re, Coles v. Courtier 1818, 1881 Courtney, In re. Dear, Ex parte 204 V. Cote ; 1679 Cousins, Jw re, Alexander D. Cross 797 Cousins' Trusts, In re 1256, 1310 Coventry v. Great Eastern Ky 290, 739 Cowan V. CarUU 73, 773 V. O'Connor 465, 1202, 1817 Coward, In re. Coward v. Larkman... 2017, 2057 Cowell V. Taylor ..•.-.. 93, 1442 Cowin, In re, Cowin v. Gravett 630,~I899 Cowley, In re, Souch v. Cowley 2108, 2128 Cowper V. Harmer 1907 Cox, Ex parte 27, 616, 687 Cox, Ex parte, Dublin Drapery Co., In re 366, 367, 368, 371 In re, Traatee, Ex parte 139 r. Andrews 835 V. Bruce 16^3 Coyle V. Great Northern Ry 1288, 1289 Coyte, In re, Coyte V. Coyte 2005 Crabtree 1). Robinson 1095 Craddock 1-. Rogers 1738 Craig 1). Elliott .'.. 471 V. Midgley, Crossland, In re 2052 Cramer v. Giles 467 I). Murphy '. 1641 Crampton «. Ridley 52 V, Swete 1833 •». Wise 2035 Crane iJ.Levris 218,1328 Craven, Ex parte, Ingham, In re 148 ■!). Ingham 1493 CrawlEordi;. Crawford 898, 899 ■ u. Newton 1081 ■!;. Peel 1298 Crawley, In re, Acton v. Crawley ... 1221, 1818 Crawshay, In re, Dennis v. Crawshay 1493 Crawshay's case 440 Creadon, The 1701 Crears r. Hunter or Burnyeat 479 Credit Co., Mx parte, McHenry, In re 91 •!). Webster 439 Credits Gerundeuse v. Van Weede... 1041, 1484 Creed v. Henderson, Hudson, In re 474, 478 Cresswell, /?j re. Parkin v. Cresswell 2045 Creswell ». Davidson 1102 Crew V. Cummings 233 Crick V. Hewlett 1448,1472 Cripps, In re, 'Ross, Ex parte 113,158 1). Judge 1195 1). Tappin 1328 Crisford t'. Dodd 1507 Croft u London and County Banking Co. 1104 v. Riokmansworth Highway Board 742, 1978 Crofton V. Crofton, Boyse, In re 215, 216, 221, 223, 1142, 1557 Crofts ti. Taylor 1047,1561 Crompton v. Anglo-American Brush Elec- tric Light Corporation 1347 u.Tarrett 619,692 Cronin i;. Rogers 1081,1103 Crooke's Mining and Smelting Co., In re, Gilman'scase 450 Croome^.Croome 2021,2093 Cropper v. Smith 36, 1342,.1501 -!!. Warner 1042,1098 Crosby, /rare, Munns i;. Burn .....v....'..-... 33 Crosland, In re, Craig v. Midgley ...i 2052' Crosley, J« re, Manns 1). Burn ... 33,187,1143 Crossfield «. Shurmur 828 TABLE OF CASES. 13 Grossman «. Gent-Davis 720,721 v.Reg 1560 Crosthwaite, £x parte, Pearoe, In re 157, 16il Crowley ■». Fenry 1058 Crown, The,, Sx parte, Oriental Bank Cor- poration, J» re 321,430,595 Crowther, In re, Duff, £Jx parte 121 In re,'E:aSs, Ex paHe 209 f. Boult 526 II. Blgood 611 ■». Thorley 352 Croydon County Court (Registrar), Ex parte, Wise,.J?t re 88, 208, 209 Union «. Eeigate Union 1384 Crozler«. Dowsett 540,1275 Crump V. Leicester, Sinclair's Settlement, Inre 492 Cubbon or Cubban, In.goods of 1993 Cuddeford, En parts. Long, Inre 106 Cumbrian, The 1707 Cundy D. Le Cocq 565,1054 Cunningham, Ex parte, Mitchell, In re 96, 1026 Inre 67 &Co., Jrere 28,415 & Co., In re, Attenborough's case 226 & Co., /«?'«, Simpson's Claim 1513 Cunnington v. Great Northern Ey 291 Cuirey, In re, Gibson u.Way 933, 944 ■». Brough, Brough, Jm »-e 1996 Currie, In re, Bjorkman v. Kimberley (Lord) 1579,2106 Curtin ■». Great Southern and Western Ry. 1293 Curtis, J» ?■«, Hawes «. Curtis 917 r. Wainbrook Iron Co 157 Cnsack i>. FarreU 1099 Cutler V. North London Ry 294 D., Inre 179 D'Amico 1). Trigona 334 D'Aroy r. B'Arcy 890 DadsweU «. Jacobs 1464,1525 Dagnino D. BeUotti 340 Daintree v. Fasulo 2002 Baking ». Fraser 714 Dale, Ex parte. Dale, Inre 203 — — In, re, Leicestershire Banking Co., Ex parte 207 Dallas ■!!. Ledger 460 Dallow ». Garrold 71,1791 Daly 1;. Daly 607,902 kCo.,Inre 435 Damant «. Hennell 982 D^mes and Wood, i« re 1940 Danby, Inre 1166 ■». Coutts 623,1307,1391 Daniel, Ex parte, Roberts, In re 164 D. Matthews, Gilbert, In re 2050 D.Whitfield 75,1987 Daniels ■!). AUard 711 Darbyshire, In re. Hill, Ex parte 204 Darenth . Main Valley Sewerage Board v. Dartford Union 872 Darley v. King, Dash, In re 4, 574, 2078 a. Tennaut 1153 Main CoUiery Co. v. Mitchell 1144, 1227 Darling, J» re 1164 Darlington Forge Co., In re 891 Darracott v. Harrison 606, 943 Dartmouth Harbour Commissioners v. Dart- mouth Mayor '.... 1443 Dash, In re, Darley -o. King ...?.■.■.... 4, 574, 2078 Dashwood, In re, Kirk, Ex. parte 138 ■». Ayles 715 Daubuz V. Lavington 1278, 1421 Davenport'!). Charsley 1934 Davey v. London and South Western Ey. 1291 V. Thompson 1562 David ■». Howe 553 Davidson «. Allen 1094,1642 V. lUidge, Illidge, Inre 792 (J. Young 1492 Davies, In re 463 ire re, Davies ■!). Davies 1485 to Jones 2055 r. Davies 485,488,537,1076,1632 «. Davies, Davies, Tit re 1485 D.Hodgson 1909 0. Makuna 481,1206 1). Rees 238 1!. Smith 1268,1451 ■B.White 749,750 t'. Williams, Williams, J» re 1154 r. Wright 1270 Davis, In re, Muckalt i>. Davis 783 In re, Pollen Trustees, Ex parte ... 159, 1094 i?i re, Rawlings, ^iB ^arfc 127,232 D. Burton 243,253 V. Comitti 501 ■». Galmoye 66 r. James 1499 ■». Loach 1069 V. Shepstone 634 u. Simmonds 607 D. Usher 255 Davison, In re. Chandler, Ex parte... 146, 1060 J« re, .G;?eenwell 1). Davison 2066 Davys and S£>urin, Inre 1935 r. Richardson 1427,1745,1823 Dawdy, In re 48 Dawes, Ex parte. Moon, In re 26, 180, 192, 202 D. Creyke 906,944 Dawson, In re, Johnston v. Hill 2080 14 TABLE OF CASES. Dawson v. Fox 25, 1045 Day, III re, Steed, Um parte 208 V, Bonaini, Smith, In, re 1949 V. Sykes 375 ■!). Turnell, Higgius, -Z» re 1576,1618 V. Ward 1203, 1733 D'Estampes, In re, D'Estampes v. Hankey 945 D'Etchegoyen D. D'Etohegoyen 1029 De Bay, The 1709, 1711 De Burgh Lawson, In re, De Burgh Law- son V. De Burgh Lawson 2109 De Carteret ii. Baudains 333 De Oaux ■!). Skipper 1275 De Jager ■». De Jager 831 De Jongh «. Newman 1507 De Mattos v. Great Eastern Steamship Co. 603 De Montforti;. Broers 329 De Mora «. Concha 28,747 De Portugal, A ?•« 569, 814 De Rechberg v. Beeton 1574 De Bos' Trust, In re, Hardwicke v. Wilmot 945 De Rosaz, In re, Rymer v. De Kosaz 535 De Stacpoole v. De Stacpoole 969 De Waal«. Adler 331 Del Carmen Vea Murguia, In goods of 2009 De la Ghevrotifere ■!). Montreal 324 De la Hunt and Pennington, In re... 2058, 2065 De la Pole (Lady) v. Dick 33, 1786 Des Vignes, Mx parte, Des Vignes, In re... 152 Deacon v. Arden 90, 1457 Deakin v. Lakin, Shakespear, In re 926 Dean, In re, Ward v. Holmes 1769 Dear, Hx parte, Courtenay, In re 204 Dearing v. Brooks, Parker, In re 1454, 2015 Dearie, Ex parte, Hastings, In re 103 V. Petersfield Union 877, 1368 Dearmer, In re, James v. Dearmer 922 Debenham o. King's College, Cambridge 58 Deering c Bank of Ireland 148 Deignan v. Deignan 937 Delaney v. Wallis 577, 1184, 1865 Delany v. Delany 2070,2079 Delaroque v. Oxenholme Steamship Co. 1656 Delta Syndicate, In re, Forde, Ex parte 446 Delves v. Newington 18 Dempsey v. Keegan 716 Denaby Main Colliery Co. v. Manchester, Sheffield, and Lincolnshire Ry. 297 Denham, In re 360, 442, 1308 Denne and Secretary of State for War, In ri! 1767 Dennis v. Crawshay, Crawshay, In re 1493 Derbon, In re, Derbon «. Collis 1424 Derby Union v. Sharratt, Webster, In re 1165, 1387 Desinge v. Beare, Prater, In 're 2069 Dessau v. Lewin, Michael, 7» re 762 Deutsche SpringstofE Action Gesellschaft v. Briscoe 49 Dever, Mx paHs, Suae, In re, 128, 130, 135, 467, 921, 995, 1003, 1035 Deviue iJ.Keeling ^''*" Devitt V. Kearney '^^^ Devonport (Mayor) v. Plymouth Tramways Co 5,989,1811 Devonshire (Duke) v. Pattinson 697, 621, 818, 1970 Dewar, In re, Dewar v. Brooke 1890 Dewhirst's Trusts, In re 1907 Dewsbury Waterworks Board v. Peuistone Union Assessment Comanittee 1377 Union v. West Ham Union 6, 1073 Dickinson, In re, Charrington or Moore, Ex parte 155 Dickson, In re, Hill v. Grant ; 971 V. Great Northern Ry 296 '0. Lough 1362 V. Murray, Murray, In re 823, 1920 Difiori v. Adams 1011 Digby, Ex parte, Jackson ■». Smith 1791 Diggles, In re, Gregory v . Edmondson . . . 2093 Dillett, Jra re 338 Dillon's claim, Munster Bank, In re 455 DiUon V. Arkins 2017, 2069 V. Balfour 633,1502 V. O'Brien 594,1366 Dimmock, In re, Dimmock v. Dimmock 804, 1883 Dinning v. South Shields Union 1387 Dione, The 1702 Direct Spanish Telegraph Qo. In re 375 V. Shepherd, 1086 1967 District Bank'of London, Ex parte, Genese, Inre 144 Inre 416 Dixi!. Great Western Ry 1406 Dixon, Ex parte, Dixon, In re ... 110, 115, 174, 207 In re, Dixon u. Smith 929 V. Brown, Brown, In re 1232, 1888 r. Farrer 597,1731 'C. Pyner 960 V. Smith, Dixon, In re 929 Dobbin's Settlement, In re 233 Dobbs V. Grand Junction Waterworks Co. 1965 Doble«. Manley 1266,1272 Docwra, In re, Doowra v. Faith 936, 1945 Dod, LongstafEe and Co., In re, Lamond, Ex parte 557, 1776 Dodds V. Tuke 743, 808, 1896 Doggett V. Revett, Youngs, In, re 29, 804, 1434, 1480 Doherty's Contract, 7m re 1946 Dominion of Canada Freehold Estate and Timber Co., In re 437 Plumbago Co., In re 420 431 Domvile v. Winnington 1617 TABLE OF CASES. 15 Donaldson, In re 528, 1279, 1778 Donoghue v. Brook 708 Donohoe v. Donohoe 551, 969, 103i V. MuUarkey 772 Dooby r. Watson 1141, 1747 Dora Tally, The 1653 Doran v. Moore 1093 Dorchester Union r. Poplar Union 1383 1). Weymouth Union ... 1385 Dordogne, The 1685, 1686 Dor6 V. Fletcher, Fletcher, In re 2041 Dormont v. Furness Ry 517, 1718 Donian v. Gilmore 2084 Dougherty 1!. Teaz 619,1491 Doughty*. Firbank 1194 Douglas, In re, Douglas v. Wood 1207 Obert ■!;. Barrow 305 Wood V. Douglas 724 r. Wood, Douglas, Jft re 1207 Doulon V. Halse 704 Dove, In re, Bousfield v. Dove 185, 1493 Dowden 1;. Lewis 1532 Dower v. Dower 1153 Down 1). Steele 710 Downe 1!. Fletcher 930, 1423 Downes v. Somerville, Somerville, Inre ... 42 Downing v. Falmouth United Sewerage Board 645 Downs 1?. Salmon 235 Downshire (Marquis) v. O'Brien... 1178, 1179, 1181 Dowson, En parte, Dowson, In re 183 In re, 3a.jnes, Ea; parte 198 Doyle r. City of Glasgow Life Assurance Co. 1003 V. Maguire 796, 1497 Dragei). Hartopp 798, 1407 Drake v. Francke, Francke, In re. . .807, 1455, 1486 V. Greaves 1133 r. Kershaw, Kershaw, /?i re 2112 Draper's Trusts, In re 2077, 2095 Draycotti). Harrison 606,943 Dresser v. Gray, Gray, In re 2083, 2086 Drew r. Drew 891 v.Josolyne 64, 165,263 V. Metropolitan Board of Works... 1209, 1314 Drewitt «. Drewitt 2015 Driffield Linseed Caike Co. i>. Waterloo Mills Co •. 1353 Driscol V. King 552 Druitt V. Christchurch Overseers 712 ■». Seaward 2031 Drum Slate Quarry Co., Inre 364, 445 Drummond v. Leigh, Bryon, In re 2024 1). Van Ingen 1584 Dmry ». Orsmond, Orsmond, i» re 792 Drury Lowe's Marriage Settlement, In re, Sitwell, Ex parte 1574 Drax, In re, Savile v. Yeatman 2036 Dry Docks Corporation, Inre 424 Duane v. Lee 799 Dublin Corporation v. M'Adam 1568 and Wicklow Manure Co., In re, O'Brien, Ex parte 447 Drapery Co., In re, Cox, Ex parte 866, 367, 368, 371 Grains Co., i» ?'e, Braine, -Ba!^fl7'Je 415 Duck V. Bates 500 Duckett 1;. Thompson 2070 Ducondu -!). Dupuy 328 Dudgeon, Ex parte. Cook, Inre 124 Dudley, Ex parte. Solicitor, Inre 1493 In re, Monet, Ex parte 611, 1742 (Countess) and London and North Western Eailway, /» re 1626 DufE's Executors' Case 881, 787 Duff, Ex parte, Crowther, In re 121 D.DnfE 895 Duffettt'. McEvoy 321, 1752 Dufourcet ■». Bishop 1672 Dugdale, In re, Dugdale v. Dugdale 2074 Duguidij. Eraser 1996, 2097 Dumoulin f . Langtry 332 Duncan v. Toms 1068 Dundee Suburban Railway, In re 1491 Dunelm, The 1684, 1805 Dunkley v. Harrison 831 Dunn ■». Dunn 901 V. Flood 1796, 1883, 1884 r. Lareau 322 ■!). Newton 1521 Dunning, In re, Hatherley v. Dunning . . . 783 ». Gainsborough (Earl) 1306 Durham (Earl), In re. Grey (Earl) v. Durham (Earl) 622 V. Durham 884 (Mayor) -!). Fowler 1532 Durrant, Ex parte, Beale, irt re 1521, 1588 Dwyer v. Meehan 632 Dyas, Ex parte, Navan & Kingsoourt Ey., ' In re 1634, 1635 Dye-o. Dye 921,939,1870,1991 Dyer, Ex parte, Taylor, In re 126 7m re. Dyer D. Paynter 1321 Dykew. Stephens 644,981 Dynevor (Lord) v. Tennant 674, 1078 Dyson D. Godfray 33,3' r. Greetland Local Board 1979 E. B. D. C 1419 E. C. Powder Co., Jm »'e 378 Eagleton v. Homer, Horner, In re ...2023, 2032 Earl of Dumfries, The 743, 1725 Earle, In goods of 2012 Early-!). Eathbone 622, 1240 East and West India Dock Co., i» ?'e 1549 ■». Kirk 49 i6 TABLE OF CASES. East and "West India Dock Co. -o. Shaw, Savill &Co 1552 East London Waterworks Co. v. St. Matthew, Bethnal Green ; 1962 Easton «. London Joint Stock Bank 53i Estate Co. v. Western Waggon Co. 1097, 1548 Easy, In re, Hill, Ex parte 84, 112 Eaton 1). Lake 501 "Ebhs, In re 133 Bberle's Hotel Co. u. Jonas 153, 426 Ebor, The 1685, 1686 Ebrard^. Gassier '.;.562, 1441 Eccles V. Wirral Sanitary Authority'. 867 EdelU. Cave 1419 Edelston I'. Russell 645 Eden v. Weardale Iron and Coal Co.... 655, 1463 Eder v. Levy 1205 Edge V. Boileau 1083 Edgington v. Fitzmaurice 344, 345, 536, 822 Edie and Brown, 7ra re 1943 Edinburgh Magistrates v. Blackie ... 1183, 1603 Edison Electric Light Co. v. Holland ....;. 1461 V. Woodhouse ... 1340 Edmonds v. Blaina Furnaces Co 368, 369 -0. Edmonds, Flower, In re ... 2099, 2102 ■!). Robinson 1337,1481 Edmonton Guardians v. St. Mary, Isling- ton, Guardians 1382 Edmunds, Mx pnrte, Green, In re 200 u. Wallingford 466, 1234, 1528 Edward v. Cheyne 917, 1601, 1602 Edwards, Ex parte, Chapman, In re 169 Ex parte, "Rorae, In re 87 Ex parte, Smith, Inre ... 49, 142, 193 Ex parte, ToUemache, In ?•«... 149, 745 In re, Owen v. Edwards 619, 1491 and Green, Jn re 1938 V. Barnard, Barnard, In re... 217, 804, 1326 V. Chancellor 216 0. Dennis 1836, 1850 i;. Dewar, Andrews, i?i re 928 D. Edwards 925 — — 1}. Falmouth Harbour Commis- sioners 517, 1718 «. Hope 540,1787 1-. Lloyd 711 ■!). Lloyd, Lloyd, J?4 re 1640 -v. Salmon 877 Edwards' Trade-mark, In re 1836, 1850 Egg'!). Blayney 1220 Eggleton v. Newbegin, Newbegin, In re... 1165, 1387 Ehlers 1!. KaufEman 155 Ehrlich^. Ihlee 1347 Eilean Dubh, The 1729 Elder v. Pearson, Bellamy, In re 913 Elderton, In re 9^7 In o-e, VmsssW, Ex parte 208 Eley, J»re 1768,1774 ti. Lytle 584 Elin, The 1656 Ellick «. Cox, Chapman,. J« re 2030 Ellington B. Clark 37,536,1340 Elliott «. Dean 469 ij. Elliott 969, U29 ®. Hall 1295 u Harris 1478,1509 «!. Lambert, Callaghan, Jw re 977 D. Nailstone Colliery Co.... 1295 Ellis, -Ete^arie, Crowther, /re re 209 iji re, Hinshelwood, ^0! jiarie 103 -0. Johnson, Glanvill, Inre 928, 942 1!. Rogers 1797,1932 ■!). Stewart 34 Ellis' Trusts, In re, Kelson v. Ellis 1486 Elmore i;. Pirrie 1797 Elphiustone v. Honkland Iron and Coal Co. 428, 1082, 1085, 1362 Blsas V. Williams , 1490 Elwell I!. Jackson 72,222,1358 Elwes and Turner, J» re 1762 «. Brigg Gas Co 1077 Elworthy v. Harvey 1487 Emanuel, In re 1773 ■». Parfitt, Tucker, J« re 925 Emeny >!). Sandes 522,553 Emery, In re, Official Receiver, Ex parte. .. 234 1). Cichero 1682 1). Sandes 522,553 Emery's Trust, Zw re 935 Emmens v. Pottle 636 Emmerson, In re, Rawlings v. Bmmerson 462, 543, 2014 «. Ind 20 Emmett ■». Heyes 539 Emmy Haase, The 1689, 1693 Emperor Life Assurance Society, In re, Hollidaj, Ex parte 440 Empire Theatre, In re, Reg. v. Inland Revenue Commissioners 1046 England, The 1651 • • ■ii. Shearburn 1100 English's Trusts, i» j-e 1132 English and Scottish Trust Co. ■»■ Flatau... 1463 Ennis I). Rochford 728,789 and West Clare Ry., In re 1320 Enniskilleu Guardians v. Hilliard ... 850, 1810 Eppos, The 1722 Erato, The 1711 Ermen & Ruby's Trade-mark, In re 1852 Erskine «. Armstrong 469 Escallier 11. Escallier 337 Esdaile, In re, Esdaile v. Esdaile 1635 V. City of London Union 700, 1376 Espir V. Todd 1091 TABLE OF CASES. 17 Bssequibo, The 1683 , Bgsery II. Cowlard 626,963 Essex Election (South-Bastern Division), Inre 719 Etheridge u. Womersley, Womersley, In re 806 European, The 1292,1696 Euston V. Smith 656, 886 'EyaxLS, Mm paj'te, JBlvans, In re 101,102 Inre 1430 In re, Blown, Ex parte 1756 In re, Evans, Hx parte 101, 102 Jjire, Evans «. Evans 777 7?i re, Welch i\ Channell ...975,1893 «. Benyon 37,1886 r. Evans, Evans, J» re 777 V. Hemingway 1055, 1071 V. Manchester, SheflBeld and Lin- colnshire Ey 992,1296,1973 I'. Maxwell, Orme, J» re 12,785 V. O'Donnell 1145 V. Eoberts, Roberts, In re 229, 472, 1588 Evatt, Em parte, Old Swan Benefit Build- ing Society, In re 278 Ewing V. Orr-Ewing 614, 801, 1032, 1033, 1597 Exchange Bank of Canada v. Beg 323 Drapery Co., /ra re 429 and Hop Warehouses v. Land Financiers' Association 1450 Fabian, .Es ^arie, Landiock, Jm re 131 Fagan ». Monks 552 Fairbum v. Household 1467 Fairport, The 1654 Faithfull, In re, Hard wick v. Sutton 784 In re, 'iiooie, Em parte 108 Falcke v. Scottish Imperial Insurance Co. 1000, 1396 Falconar's Trusts, In re, Bradford v. Young 36 Fanny M. Carvill, The 1682 Fanshawe v. London and Provincial Dairy- Co 1468 FardeU v. Chapman, Chapman, In re 1487 I'arman, In re, Farman v. Smith 1999 Farmer v. Farmer 890 — — tf. London and North Western Ey. 1380 Famell's Settled Estates, 7» re 1632,1911 FarneU «. Bowman 318 Famworth Local Board v. Compton 868 Farrarr. Farrars 536, 1259 Farrer v. Lacy 35, 1261, 1271, 1276, 1590 1). Nelson 833, 1091 Farrington ». Farrington 907,908 Faulkner, Jm re 1772 Faure Electric Accumulator Co., In re 363, 422 V. Philli- part 393, 737 Faust, The 1658 Fawcus, In goods of ' 761 Fawsitt, In re, Galland v. Burton . . .'. 30 Feaion v. Aylesford (Earl) . . .: 483, 564, 912 Feast, Ex parte, Feast, Inre 107 Fee D. M'Manus -. '.. 2085 Fellows 1). Thornton 72 ■B.Wood 966 Fendallo). O'Connell .'653, 943, 1501 Fennessy 1). Clark '.; 646 ■B.Day : 520,1858 ■B. Rabbits 1469 Fenton, Ex parte, Sissling, In re 161 Ferens v. O'Brien 574 Ferguson, -Ec^arfe, Buckley, In re 1769 Ferns t!. Carr 1733 Ferret, The 1721 Fewings, Ex pa/rte, Sneyd, In re 188, 1023, 1061, 1279 Field, Tare 1765,1767,1774 7>j re, Hollyoak, Sj^arfe 139 J). Bennett 1410 -0. Field 888, 900 ■(). Lydall, Tillet, In re 806, 1493 v. White, Rownson, Inre ■. 783, 788 Fielding ■B. Cronin 787 Findlateri). Tuohy 799, 1422 Findlay, Zrara 970,1906 Fine Art Society v. Union Bank 77, 1304, 1389 Finlay II. Chirney 883, 1400 Finley, In re, Clothworkers' Co. or Han- bury, Ex parte 122 Finnis to Forbes, Finnis, -Ei! ^arie 313 Tower Ward Schools Trus- tees, Ex parte 314 Finsbury School Board Election, In re, Ayres, Ex parte 41, 1592 Firbank, In re. Knight, Ex parte 88 V. Humphreys 373, 1518 Fire Queen, The 1684, 1691 Firmin, In re, London and County Banking Co. B. Firmin 612 Firth i>. North Eastern Ey 286 ■«. Slingsby 1147 Fisher's Case 452 Fisher and Haslett, In re 778 Fitt V. Bryant.. 72 Fitzgerald's Settlement, Jre re 1266,1614, 1871 Fitzpatrick, In re 235 ■!!. Waring 72 Fitzroy Bessemer Steel Co., In re 363, 1143, 1308 Flatau, In re, Scotch Whiskey Distillers, Exparte lHj 113 Flavell, In re, Murray v. Flavell 1334, 1872 Fleck, In re, Colston v. Roberts 2112 Fleming v. Brisley, Brisley, In re 2058 ■B. Hardcastle 1764,1769 ^. Hislop 1600 i8 TABLE OF CASES. Fleming !). Yeamen 1597 riemyng's Trusts, In re 956 Fletcher, Eco parte, Fletcher, In re 116 In re, Dor6 ■». Fletcher 2041 i» re, Gillings r. Fletcher 2091 ■!). Bealey 1313 Flewitt «. Walker 1930 Flint, Ex parte 58 Coal and Cannel Co., In re 419 Flintham i;. Eoxburgh 507 Florence Land and Public Works Co., In re, Nicol's case, Tufnell & Ponsonby's case 391 Flower, In re, Edmonds v. Edmonds 2099, 2102 V. Metropolitan Board ' of Works, In re 1885,1947 Flynn, In re, Guy v. McCarthy 809 Foakes 1J. Beer 2,478 ■!>. Webb 663 Fobbing Commissioners v. Reg 669, 1607 Foot D.Leslie 1161 Foott®. Beau 1448,1472 Ford, Ex parte, Ghappell, In re... 141, 465, 1529 Ex parte, Ford, In re 106 ■». Barnes 709 V. Hoar 716 V. Metropolitan and Metropolitan District Eys 1119 'ii. Miescke 1413 V. Shephard 1410 V. Smerdon 718 Forde, Ex parte, Delta Syndicate, In re ... 446 Fore Street Warehouse Co., In re 377 Foreman, Ex parte, Hann, In re 206 Ex parte, Price, In re 119 Fon-est «. Shore 1273 Forster, i» ?'e, Eawliugs, -Es^arfe 166 & Co., In re, Schumann, Ex parte 441, 1188 V. Davies, McEae, In re ... 33, 803, 1329 V. Schlesinger 1495, 1900 FoscoHno, The 1701 Foskett V. Kaufman 715 Foster's Trusts, X» re 1916 Foster, J?a; ^arte, Hanson, J» re 101 Ex parte, Webster, In re 87, 174 ■ .Eb ^arie, Woolstenholme, Jm re . . . 98 In re,'Ba.sa,Ti, Ex parte 114 V. Diphwys Casson Slate Co 1229 «. Ward 220,1325 0. Wheeler 479, 601, 1075 Foulkes V. Quartz Hill Consolidated Gold Mining Co 349 Fowke«. Draycott 936,2061 Fowler's Trusts, J» re 1909 Fox's Claim, Northumberland Avenue Hotel Co., In re 478 Fox, Ex parte, Smith, In re 95, 140 Inre 1159 Fox V. Eailway Passengers Assurance Co. 50, 997 ■». Smith 25,1045 Foxwell v. Lewis, Lewis, In re 495, 2109 France v. Clark 387 Francis, Ex parte, Bruno, In re 1586 Fraucke, In re, Drake v. Francke . . . 807, 1455, 1486 Franke u. Chappell 1830 Franks v. Worth, Bridge, Inre 1485 Eraser, In re 49 V. Brescia Steam Tramways Co. ... 420, 537 V. Denison 688 V. Ehrensperger 49, 616 V. Mason 496 Frechette v. La Compagnie Manufacturifere de St. Hyacinthe 327, 683 Free Fishermen of Faversham, Jra re 411 Freeman's Settlement Trusts, In re 1918 Freeman ■!). Newman 714 Freke v. Calmady, Hotcbkys, J« re... 1894, 2111 French, In re. Love «. Hills 1396, 1752 i;. Hope 1249 V. Municipal Permanent Building Society 275 French Hoek Commissioners v. Hugo... 331, 683 Frewen, /» ?'e, Frewen «. James 1634 Priedeberg, The 543,1729 Friedlander, In re, Oastler, Ex parte ... 98, 201 Friend u. Shaw 547,1111 Friths. Cooke 1272 ■B.Simpson 1550 Frowde ■». Williams 1324 Fry U.Lane 1000,1923 i>. Tapson 1875, 1889 Fryer, Ex parte, Fryer, In re 105, 608, 895 Fryman's Estate, In re, Fryman v. Fry- man 210, 1094 Fulham Board of Works v. Smith 1215 Union r. Wells 1223 Fullagsen I). WaHord 1674 Furber v. Abrey 251 1). Cobb 246,250,251,253 Furlong v. South London Tramways Co.... 1173, 1199, 1863 Furness 1). Davis 524 Eailway v. Cumberland Building Society 671,1119 Fumiss'!). Phear 2018 Fusee Vesta Co. v. Bryant and May. . . 1342, 1354 Pussell 1). Dowding 1403 i'. O'Boyle 1509 Futcher v. Saunders 507 G. V. M 20, 885, 1600 Gabriel 1). Blankenstei'i 122 TABLE OF CASES. 19 Grainsborough (Earl) v. Watcombe Terra Cotta Co 1306, 1879, 1891 Gale, Z» r«, Blake r. Gale lUl Galland, Arc 1747,1783,1787 ■!). Burton, Fawsitt, 7?i re 30 Gallaid, In re, Harris, Ex parte 199, 1770 r. Hawkins 497 Games, In re, Board of Trade, Ex pavte ... 91 r. Bonnor 40, 541, 1801, 1937 Gamlen, 7?t j'e, "WaTd, Ex parte 117 V. Lyon, Barrington, iK re... 1228, 1615 Gandy r. Gandy 4, 475, 629, 725, 911, 1399 r. Macaulay, Gainett, In re ... 623, 625, 754, 805, 1486 Gapp V. Bond 224, 1658 (Jaroia v. Garcia 891 Gard D. Commissioners of Sewers... 616,1213, 1214 Gardner ■!!. Jay 1471 V. Mansbridge 585 r. Smart 235 D. Tapling 982,1478 ». Trechmanu 1675 Gardiner, In re, Coulson, Ex parte 95, 944 In goods of 2008 «. Courthorpe 1994 Gardiner's Trusts, J™ re 1908 Gare's Patent, In re 1341 Garfitti). AUen 2115 Games, In re, Games v. Applin 984, 1899 Gamett, In re, Bullock, Ex parte 189 In re, Gandy v. Macaulay . . . 623, 625, 754, 805, 1486 -Z« r«, Robinson ?). Gandy 949 Gamett-Orme to Hargreaves 1628 Gamham D. Skipper 1254, 1450 Garrett r. Middlesex JJ 1052 Garrod, Inre 1160, 1916 ■• Garston " Sailing Ship Co. v. Hickie 1668, 1674 Gasooyne «. Rialey 1049 Gaslight and Coke Co. «. Hardy 842 n. HoUoway 1107 D. St. Mary Abbott's Vestry 842,1209 V. South Metropoli- tan Gas Co 838 V. Towse 1088 Gason ?;. Rich 8,844 Gateshead (Mayor) v. Hudspeth, Hewitt's Estate, /» re 304 Gaulard and Gibbs' Patent, Inre ... 1343, 1351 u. Lindsay 1343 Gayner v. Sunderland Joint Stock Pre- mium Association 1018 GedlingBeotory, In re 1132 Geer. BeU 1420, 1455,1485 Geisel, Ex parte, Stanger, In re 98, 118 " Gem " Trade-mark, Inre 1838 General Horticultural Co., In re, White- house, Ex parte 70 General Horticultural Co., In re. White- house's Claim 368 Genese, In re, District Bank of London, Ex parte 144 In re, GYiheit, Ex parte 755 Inre,'K6a,Ts\ej, Ex parte ... 139,170, 173, 197 Ex parte,'L3,scel\es, In re 27,609 Gent, In re, Gent- Davis v. Harris 610, 1315 George Gordon, The 1729 George Roper, The 1691 Gera u. Ciantar 333 Gerard (Lord), In re, Oliphant v. Gerard 948 Germ Milling Co. v. Robinson 1345, 1348 Gertrude, The 1024,1444,1725 Gettysburg, The 1697, 1726 Ghost's Trusts, Inre 734,792 Gibbes' Settlement, In re, White v. Ran- dolf : 2098 Gibbings «. Strong 1508 Gibbons, Jre re 796 - V. Chambers 483, 1806 «. Hickson 225 Gibbs V. Great Western Ry 1193 «. Lamport 1716 • V. Layland, Marsden, I71 re ... 1140, 1955 Gibert V. Gonard 132,1920 Gibson, Ex parte. Lamb, In re 99, 168 Ex parte, Btockton, In re 203 I. Way, Currey, In re 933, 944 i.Wise 1150 GifEord's Divorce Bill 904, 905 Gifford and Bury Town Council, In re 873 GllbeTt, Ex parte, Genese, I71 re 755 7?i re, Daniel D. Matthews 2050 J» re, Gilbert ■«. Huddlestone 544 «. Aviolet, Heathcote, J» re 494 «. Huddlestone, Gilbert, Jre re 544 T. North London Ry 282 - — - V. Trinity House Corporation 517, 1299, 1718 Gilchrist, Ex parte, Armstrong, In re... 41, 134, 922 Giles, In re 796, 1901 GiU, Ex parte, Reg. v. Yorkshire JJ 1176 In re. Smith v. Gill 1487, 1910, 1918 V. Woodfin 39, 1482, 1509 Gillard D. Cheshire Lines Committee 1118 «. Lawrenson, Burge, 7m re 1140 Gillatti). Colquhoun 1571 Gillespie, In re, Morrison, Ex parte ... 151, 204 In re, Reid, Ex parte 152, 200 In re, Robarts, Ex parte 143, 223 Gillings V. Fletcher, Fletcher, In re 2091 Gilman's case 450 Gilmer, In re 767, 1058 Gilroy*. Bowey 246 4 A 20 TABLE OF CASES. Ginnett D. Whittingham 1923 Glamorganshire, The 1682, 1694 Banking Co., In re, Mor- gan's case 438 Glanvill, In re, Ellis v. Johnson 928, 942 Glanville, In re, Jenkins, Ex parte, ..^Q, 99, 164 Glasco^ine and Carlyle, In re 1759, 1769 Glasgow Corporation II. Miller 1567 (Lord Provost) v. Farie 1226, 1961 V. Hillhead Police Commissioners 1598 and South Western Ky. ii. Mac- kinnon 292 ■ and South Western Ey. and Lon- don and North Western Ey., Inre 53 Glen «. Fulham Overseers 1221 Glenfruin, The 1661, 1705 Glenister v. Harding, Turner, In re 744, 748 Glenny and Hartley, In re 1914 Glenton to Haden, In re 1941 Gliddon, Ex parte, Wakeham, In re 146 V. Brodersen 481 Gloucestershire Banking Co. v. Edwards 5, 1642 Banking Co. «. Phillips ... 943, 1463 Glover «. Smith 2000 Goad V. Empire Printing Co 630 Goas, Ex parte, Clement, In re 179, 620 Godfrey, Ex parte, Lazarus, Inre 173 Ex parte,'WiTis\ow, In re 136 ■B.Poole 828 Godiva, The 1695 Gold 1). Brennan, Steele, i» re 1903 Goldring V. Lancaster, Ormston, In re 525 Golds and Norton, Inre 1948 Goldsmid, In re, Taylor, Ex parte ... 163, 1887 V. Great Eastern Ey 1811 Goldstrom ■». Tallermau 242,245 Goooh V. London Banking Association 428 Good, Ex parte, Salkeld, Inre 120 Goodall 1). Harding 472 Goodbody «. Gallaher 1428 Goodden v. Coles 668, 693, 1266 Goodenough, Ex parte, Walmsley v. Mundy 57 Goodesi). ClufE 560 Goodfellow u. Prince 1830,1856 Goodhart ■!). Hyett 520,684 Gooding v. Ealing Local Board 857 Goodland «. Bwing 787 Goodman 1). Blake 558,1043 ■ V. Robinson 69 Goodwin v. Goodwin 906 Goold, Ex parte. Walker, In re... 123, 192, 193, 1083, 1101, 1103 J?t re, Goold ■!). Goold 1404 V. Birmingham, Dudley and District Bank 1943 Gordon v. James 1283, 1514, 1736 Gornall r. Mason 762,2002 Gorringe v. Irwell India Rubber and Gutta Percha Works 61,433 Gort (Viscount) v. Eowney 529 Gosling, In goods of 2006 Gosnell ■». Bishop 536 Gough ■!). Heatley 1*78 1'. Murdoch 848 Gough's Trusts, In re. Great Western Ey., Ex parte 1132 Goulard 41. Lindsay 1353 Gould, Ex parte, Eichardson, In re 88, 140 Ex parte, Salmon, In re 1658 ExpaHe,Wa,rkeT,Inre... 123,192,193, 1083, 1101, 1103 In re, Ofiacial Eeceiver, Ex parte 210 Gouraud v. Edison Gower Bell Telephone Co 650 ■B.Fitzgerald 637,1437 Goutard v. Carr 54, 530, 1428 Gow V. Foster 2126 Gowan'B. Sprott 1650,1727 ■B.Wright 613,1805 Gower ■B. Postmaster-General 1079 Graf ton «. Watson 537,1859 Graham v. Edge 417 ■B.Lewis 1202 Grahame u Grahame 80,752,1528 Grand Junction Canal Co. ■». Petty 1970, 1974 Junction Ey. of Canada u. Peter- borough (Corporation) 326 Trunk Ey. of Canada 1). Jennings .. . 1302 Grange v. Sturdy, Haseldine, Inre ... 796,2025 Grant, In re, Whinney, Ex parte 136, 174 ■B. Coverdale 1678 ■B. Baston 1038,1421 -B. Heysham, Milne, iji re 2050 Grattan i). Langdale 2064 Graves v. Masters 1515 Gray, In re. Dresser v. Gray 2083, 2086 In goods of 2007 V. Commissioners of Customs 1063 i;. Hopper 551 ■B. Press Association 1417 ■B. Stait 1098 Great Berlin Steamboat Co., In re ... 437, 823 Great Eastern Ey. v. Goldsmid 1180, 1182, 1958 Steamship Co., In re, WU- liams'Claim 1656 Great Indian Peninsular By. ■». TurnbuU... 1671 Northern Ey. and Sanderson, In re... 1941, 1944 u Tahourdin 1548 Great Western Forest of Dean Coal Con- sumers' Co.,Inre, Carter's case 421 Great Western Forest of Dean Coal Con- sumers' Co., In re, Craw- shay's case 440 TABLE OF CASES. 21 Great Western Ey., Ex parte, Gough's Trusts, In re 1132 ■». Bagge 291 v. Bunch 286 t). Central Wales Ey. 1552 V. McCarthy 295 D-Swindonand Chel- tenham By.... 1114, 1115, 1805 Steamship Co., In re 378 Wheal Polgooth, In re 355, 422 Gr^bert-Borgnis v. Nugent 604 Green, In re, Edmunds, Ex parte 200 In re, Green v. Green 1792 V. Belfast Tramways Co 685 V. Bennett 1467 ■». Biggs 1243 ■». Brand 827, 1007 r. Burgess, Williams, In re 796 !■. Green, Green, In re 1792 v. Humphreys 1146 V. Paterson 498, 817, 936, 962, 1823 GreenbankB. Sanderson 525, 819 Greene's Estate, In re 1145 Greene ». Flood 792, 2059 «. Grordon, Jones, /» re 2096 ii. Thornton 1477 Greenway v. Bachelor 507, 718 GreenweU ■». Davison, Davison, In re 2066 «. National Provincial Bank 79 Greenwood's Trusts, In re 1907 Greenwood*. Homsey 679, 681, 986 Gregory i: Edmondson, Diggles, In re 2093 Gregson, In re, Christison v. Bolam 1284 Gregson's Trusts, 7» re 1916 Grepe, .Ec^arfe, Grepe, 7» re 205 1). Loam 1479 Oreville's Settlement, In re 1767 Grey's Case 392 Brewery Co., In re 439, 1770 Settlements, In re, Acason v. Green- wood 923 Grey (Earl) v. Durham (Earl), Durham (Earl), In re 622 Gridley D. Swinbome 1858 Griffith, i» re 174 In goods of 505,2015 ■». Blake 988 V. Bourke 2087, 2088 Griffith-Boscawen «. Scott 2104 Griffith Jones & Co., In re 1276, 1758 Griffiths, J» re 969', 1077 J» re, Griffiths V. Lewis 809 «. Lancashire JJ 1050 B. Lewis, Griffiths, Jm re 809 V. London and St. Katharine Dock Co 1189 t). Mortimer, Mortimer, In re 2027 Grimmett's Trusts, In re 1163 Grimwade, Ex parte, Tennent, In re ... 109, 443 i: Mutual Society 360 Grogan v. London and Manchester Indus- trial Assurance Co 995 Grosvenor 1). Grosvenor 893 Bank ». Boaler 354 Grove, In fe, Vaucher v. Solicitor to the Treasury 1026, 1031 Grover v. Loomes 1937, 1952 Groves 1). Volkart 1665 Grumbrecht i;. Parry 666 Grundy v. Townsend 730, 1203, 1233 Guest, Ex parte, Eussell, In re 109, 613 Guilfoyle, In re 148, 177 Guillemlu, Ex parte. Oriental Bank Cor- poration, i?J re 436 Guinness v. Fitzsimons 990 Guiterman's Eegistered Designs, In re 1859 Gullischen «. Stewart 1665 Gully «. Smith 1976 Gunr. M'Carthy '..752, 1231 Gunn, In goods of 493, 940, 1576, 1993 Gunning's Estate, Z» re 2041 Guy, Jm re, Scantlebury, jEfej?arte 200 t!. Churchill 1789 ■B.Hancock 654 V. McCarthy, Flynn, In re 809 Gyhon, In re, Allen ■». Taylor 1450 Gyll, In re. Board of Trade, Ex -parte 118 Gyteu. Gyte 607,895 Haberdashers' Co., Ex parte 1127 Haddan's Patent, In re 666, 1351 Haddon r. Haddou 905 Hagan, In re, Adamson, Ex parte 197 Haigh r. Haigh 1480 V. Eoyal Mail Steam Packet Co. 283, 1301, 1647 Haines ». Guthrie 744 Hale, Ex parte, London and Provincial Electric Lighting Co., 7?i re 349 Hale and Clarke, In re 1621 and. Smyth, In re 1621 Hall, Ex parte. Beg. v. Cuming 58 Lire 1342,1803 In re, Branstou v. Weightman 2024 In re. Close, Ex parte 226 In re. Hall v. Hall 1453, 1911, 2114 Hall's Settlement Trusts, In re 1909 Hall D. BiUingham 1584 V. Brand 51, 755 V. Bromley 497 V. Colbeck, Colbeck, In re 1406 r. Comfort 228, 1278, 1421 V. Derby Sanitary Authority, 312, 871. 1370 4 A 2 22 TABLE OF CASES. Hallv, Ewin 1088 V. Hale 1800,1902 V, Hall, Hall, i» TO 1453,1911, 2114 V. Heward , 1280 V. London, Brighton, and South Coast Ey 26, 292, 1552, 1553 v. Traman 662 V, West End Advance Co 740, 1254 & Co., In re 416, 449, 1310 Hallas V. Kobinson 259 Hall-Dare v. Hall-Dare 624, 816 Hallett V. Furze ...' 1270 V. Hastings, Hastings (Lady), In re, 928, 1154, 2118 Halliwell, In goods of 2011 Hallows r. Lloyd 1899 Hamill v. Lilley 20 V. Murphy 735 Hamilton, In re 974 — -In goods of 2008 V. Barr 1415 ■», Bone 585 (Duke) V. Duulop 620,1224 tD. Pandorf 1668 Hamlet, In re, Stephen v. Cunningham ... 2047 Hamling v. Elliott, Coulton, In re 1482 Hammond D. Bussey 605 r «. Hooking 251 Hampden v. "Wallis 67, 68, 1426 Hampshire, JJ., In re , 1594 Hanbury, ^ ^(i9'if , Finlcy, J» re 122 V. Gundy 1058,1092 Hanceii. Harding 95, 160 Hancock, iM re, Hancock i). Berrey ... 1144, 1245 ^.Hancock 947 Hankey ». Martin 1237 Hankinson «. Barningham 2014 Hanmer ■». King 558 Hann, In re. Foreman, Ex parte 206 Hannay v. Graham 1436 Haunington v. True, Smith, J» re 2112 Hanrahan v. Limerick Steamship Co. 554, 1190 Hansa, The : 1698 Hanson, In re, Foster, Etc parte 101 r. Maddox 541,1043 Hanson's Trade-mark, J?s re 1839, 1841 Harbord, /m re 1842 Hardaker u. Moorhouse 1912 Harden Star Hand Grenade Co., In re ... 1839 Harding, In goods of 2012 V. Barker 1199, 1215 1). Board of Land and Works 321 v. Harding 62, 889 ». Lyons 1499 Hardman and Child, 7« re 1942 ■ 1). Child 1942 1). MafEett 955 Hardwiok, In re 23, 1741 J» re, Hubbard, &! ^arie 226 Hardwiok, The 755, 1725 V. Sutton, Faithfull, In re 784 Hardwicke v. Wilmot, De Eos' Trust, In re 945 Hardwidge, In re 42 Hardy v. Fothergill 186 11. Korth Eiding JJ 7, 1063 Hargrave v. Kettlewell 1429 Hargreave's Trust, In re, Bradford (Mayor), Ex parte 1128 Hargreaves and Thompson, In re 1939 Harker v. Edwards 1524 Harnett, In re, Leahy v. O'Grady 754, 805 r. Miles 832 Harper v. Aplin 1266 V. Davis 564 Harrald, In re, Wilde v. Walford ... 1787, 1898 Harrington, The 1730 'Ea.nis, Ex parte 1097 Ex parte, Gallard, In re 199, 1770 In re 1772 - — • Jti re, Harris D. Harris 807 r. Briscoe .._. 300 V. Davies 321 ■!). De Pinna 678 V. Marcus Jacobs 1667, 1677 V, May ,: 851 i;. Eothwell 1339 . ■». Slater 549 «. Tenpany ...,..,,, *67 Harris' Settled Estates, In re 937, 1627 Harrison, Ex parte, Cannock and Eugeley Colliery Co., In re 387 Ex parte, Peake, In re , 159, 842 ■ Ex parte, Jordan, In re 139 In re 1777, 1781 In re, Harrison v. Harrison 1615, 1824 In re, Latimer v. Hairison 785 In re, Perry v. Spencer 493 Jre re, Turner -i). HeUard 2017 V. Abergavenny (Marquis) 1447 ■!). Cornwall Minerals Ey 1788 0. Harrison 901, 903, 927, 1789 r 1). Harrison, Harrison, J« re.. .1615, 1824 V. London and North Western By. 1302 V. McL'Meel 1056 V. National Provincial Bank 1172 HaiTop's Trusts, In re 1639 Harsant v. Blaine 1022, 1234, 1525 Harston i>. Harvey 480 Hart, In re, Caldicott, Ex parte 147, 153 V. Hernandez 2068 D. Manston, Spencer, ijf 7'e 2016 Hartcup v. Bell 44, 734, 1084, 1093 Hartew. Meredith 795 Hartley, In re, Stednian v. Dnnster 2079 r v. Wilkinson 1863 Harton, The 1692 Hartopp II. HuskissQn , 1249 Harvest, The 1695 TABLE OF OASES. 23 Harvey, Mx parte, Player, In re 167 In re, Harvey v. Lambert 780 J« }■«, Peek «. Savory 2081 In re, Phillips, Ex parte 179 i» r«, Wright t'. Woods 809 V. Croydon Union Rural Sanitary Authority 1489 D.Dougherty 1418 ti. Harvey 69, 1641 «. Lambert, Harvey, Jn re 780 D. Lovekin 656,657,663,887 V. Municipal Permanent Investment Building Society 272 V. OUiver 1897 Haxvey's Estate 1785 Harwood, In re 1159, 1902 Haseldine, In re, Grange v. Sturdy 796, 2025 Hasker, ^a yarte 1177, 1493 V. Wood 522 Haslam Engineering Co. v. Hall 27, 1348 Foundry and Engineering Co. ■». Goodfellow 1343 Hassard ®. Clark 833 Hasson u Chambers 707 Hastie's Trusts, i?j re 2022 Hasties and Crawfurd, ire »■« 1774 Hastings, In re. Dearie, Mx parte 103 (Lady), In re, Hallett «. Hastings 928, 1154, 2118 Hatchardi). M6ge 1400, 1834 Hatteni;. RusseU 1620, 1933 Hatherley ■». Dunning, Dunning, In re 783 Hawes, ^K^artfi, Byrne, Traj-e 1156 t). Bauman 176 ■». Curtis, Curtis, i» »•« 917 V. Hawes 900 D. South Eastern Ry 289,602 Hawke, ijj re, Scott, ^2! ^arte 84 ■». Brear 53,531 Hawken «. Shearer 1295 Hawkesworth v. Chaffey 465 Hawkins 1). Hawkins 894 Hawksfordw. GifEard 333, 1039 Haydour. Brown 231 Haynes, In re, Kemp v. Haynes 1633, 2075 Hayson, In re, Booth v. Trail 70 Hayward's Trade Mark, In re... 1837, 1848, 1851, 1855 Hayward v. East London Waterworks Co. 989, 1965 D. Lely 503,504 ■». Moss 53 & Co. V. Hayward & Sons ...635, 1833 Haywood D. Silber 1076 Hazeldine v. Heaton 1105 Hazle's Settled Estates, In re 1624 Hazlehurst, Hx parte, Beswick, In re 86 Headington Union v. St. Olave's Union ... 1381 Heap, In re, Board of Trade, Ex parte 180 1). Burnley Union '. 862 Heap «. Day 1863 Heathcote, In re, Gilbert v. Aviolet 494 u Livesley 156 Heaton's Trade-mark, J» re, 1838 Heawood t). Bone 1097 Hector, The 40,1699,1701 Hedgely, In re. Small v. Hedgely 793, 929 Hedges v. London and St. Katherine Docks Co 1717 Heinrich Biom, The 1715 Heintz, Ex parte, Heintz, In re 177 Helder, Exparte,'Ley!is,In re 101, 168 Hellard v. Moody, Ridge, In re 1632 Hellier «. Hellier 1995 Helmore v. Smith 461, 766 1332, 1338 Hemsworth Free Grammar School, In re,. .. 314 Henderson, Ex parte, Henderson, In re 109, 901 iji re, Nouvion «. Freeman ... 1039 B.Maxwell 1445 D.Preston 1173,1536 V. Rothschild 399,1234,1519, 1870 Hendry, In re, Watson v. Blakeney 302 V. Turner 1337 Henley, In goods of 2014 Hennessy v. Wright 637, 647,661, 1438 Henry u Armitage 508,509 ■ V. Strong, Coleman, In re 974, 1880, 2040 Henty ». Wrey 616,1619 Hepburn, In re, Smith, Ex parte 145, 1138 «. Leather 1795 Heppenstall ®. Hose 1941 Herbert, ira re 1755 Hercules, The 1726 Herman ■». Jeuchner 484, 594, 1234 — ■- V. Royal Exchange Shipping Co. 738, 165 9 v. Zeuchner 484, 594, 1234 Hermann Loog, In re, Ramsay's case 419 uBean... 639,991, 1135,1390,1526 Hernando, iJs re, Hernando ij. SawteU... 1036, 2105 Hersanti). Halse 706 Heske ■!). Samuelsou 1196 Hesketh v. Bray 1572 Heslin v. Fay 1335 Hester ®. Hester 1763,1764 Hetherington's Trusts, In re 1915 . ■». Groome 239,249 ■». Hetherington 905 Hettihewage v. Queen's Advocate 332 Hewat's Divorce Bill 904 HewettD. Murray 769,1456 Hewitsoni). Fabre 1413 Hewitt, Ex parte, Hewitt, In re 137, 210 Hewitt's Estate, In re, Gateshead (Mayor) 1;. Hudspeth 304 and Brett's case 445 Heyes v. Heyes 894, 897 Heywood, In re 563 0. Mallalieu 1934 — — t). Manchester (Bishop) 689 24 TABLE OF CASES. Hey worth, Ex parte, Khodes, In re 114 !). London (Mayor) 1538 Hibernian Joint Stock Co. v. Fottrell 1402 Hiokey, J» ?'e, Hiokey «). Colmer 612 Hiokley, i» re 1766 ■!). Strangways, Strangways, /»?'# 1622 Hickman, In re, Strawbridge, Ex parte 94, 175, 176 V. Williamson, Johnson, In re ... 2029 Hicks V. Dunstable Overseers 1369 Hiddingh v. DeVimers 329, 775 'ii. Denyssen 339 Higgins, In re, Haj V. Turnell 1576,1618 and Perciyal, i» re 1937 «. Browne 1433 ». HaU 850 «. HUl 483 v. Scott 1509 Higgg D. Weaver, Weaver, Iti re 209 Highworth and Swindon Union v. West- bury-on-Severn Union 1382 Hilbera V. Parkinson 951 Hill, Ex parte, Darbyshire, I/i re 204 Ex parte. Easy, In re 84,112 Ex parte, l^ane, In re 240 • In re 1759, 1763, 1776 to Chapman, J» 7'e 2029 V. East and West India Dock Co 123 ■». Edward 866, 1086 ^ ■!;. Grant, Dickson, In re 971 V. Hart-Davis 653, 762, 1504 V. Somerset 1977 V. Spurgeon, Love, In re 813, 1896 &;Co. ■B.Hill 353,488 Hilleary and Taylor, In re 532 Hillyard «. Smyth 1409 Hilton 1). Tucker 226,1357 Hiuks, In re, Verdi, Ex parte 142 Hiushelwood, Ex parte, Ellis, 7»H'e 1 03 Mintz, Ex parte, Hiatz, In re, 177 Hipgrave «. Case 1503, 1798 Hire Purchase Furnishing Co. v. Eichens 408 Hitchins v. Morrieson 906, 2032 Hoaie 1). Hoare 306 V. Stephens 1274 Hobbs, In re, Hobbs ^•. Wade 971, 1151 ■!). Wayet 772,1877,2092 Hobson, i» re 154 J» re, Walker D. Appach ... 1819,2125 J« re, Webster ■!). Kickards 924 Hockady, 7m r«, Nelson, JEs^arie 257 Hockey v. Evans 1041 Hodge D.Eeg 325 Hodges V. London Tramways Omnibus Co. 990, 1223 Hodgson, In re, Beckett v. Kamsdale 728, 754, 805, 807, 1329 Hodkinson'B. London and North -Western Ry. 286 Hodson and Howes, J» re 1243 Hogan V. Sterrett 705 Hogg 1). Brooks 1099 HohenzoUern Actien Gesellschaft and the Contract Corporation, J» re 46 Holborn Union v. Chertsey Union 26, 1385 Viaduct Land Co. ■». Beg. ...597,1573 Holburne, In re, Coates v. Maokillop 303 Holden, In re, Holdeu ■». Smith 2059 In re, Official Receiver, Ex parte 160, 1896 Holgate u. Brett 1368 I). Shutt 277,1451,1452 Holland, Jre re, Warren, fiajjiflM'it- 157 1). Dickson, or Crystal Palace Co. 355 i). Worley 680,985 Holliday, Ex parte. Emperor Lile Assu- rance Society, In re , . . 440 and Godlee, iji re 1766 and Wakefield (Mayor), In re 55, 1961 HoUingshead, In re, HoUingshead ■». Webster 1147 Hollingworth v. Willing, Weir, In re 628, 1309 HoUins D, Vemey 673 HoUman ■!). PuUin 1520 Holloway, In re, Holloway v. HoUoway ... 1884 In re, Young v. Holloway 649, 659, 2014 Holly D.Burke 706 'B.oWjoak, Exparte,'Pie\A, Inre 139 Holmes, In re 1257, 1495 1-. Brierley 883,967 i;. Durkee 220,468,1527 V. Shaw 1506 Holt 1). Beagle 1275 Holton V. London and South- Western Ey. 282 Holy Trinity Church, Stroud Green, In re 693 Holyland 1). Lewiu 2101 Homan, In goods of 2009 Home, Ex parte,'B.ome, In re 144,161,827,943 J?i re, Edwards, ^ai^arfe 87 Home Secretary and Fletcher, 7» re 1229 Homer 1). Gadman 1976 District Consolidated Gold Mines, Inre,Sim.t)i, Ex parte 382 Homfray, In goods of 1993 Honeybone r. Hambridge 710 Honygar, -Erjiarie, Mahler, iJi re 89 Hoodi;. Eandell, Eandell, In re 40 Hooper ■«. Exeter (Mayor) 1233 D.Hawkins 1980 e. Smith, Smith, J» re 31 Hope, The 1787 ■!). Croydon and Norwood Tramways Co 374 r. Evered 1171 Hopkinson v. Cauut 1230 Hopper's Trusts, In re 1910 Horace, The 536,1728 TABLE OF CASES. 25 Horan D. Macmahon 626,1741 Hordem v. Commercial Union Assurance Co 751,1006 Hornby «. Silvester 341 Home, lii re, Nassan, Ux parte 126 and Hellard, Zre re 371 Home's Settled Estate, In re 1623 Horner, In re, Eagleton v. Horner ... 2023, 2032 ■». Cadman 1976 V. Whiteohapel Board of Works 538, 1184, 1215 Horniblow, Inre, Official Eeceiver, Ex parte 90 Horsbui^h's Application, 7>i re 1843,1845 HorseU v. Swindon Local Board 859 Horsley i;. Price 1667 Horton, J» re, Horton i;. Perks 735,960 Horwood, i» re 761,1919 Hosking v. Smith 272, 1247 Hospital for Incurables, In re 312, 751 Hotchkin's Settled Estates, In re 1637 Hotchkys, In re, Freke v. Calmady... 1894, 2111 Hough, Ex parte, Windus, In re 154, 155 ■». Head 1012 ■». Windus 154,767,1804 Houghton, In re, Houghton v. Brown 2061 1), Sevenoaks Estate Co 1268 Houghton's Estate, Inre 1636 Honlder v. Merchants' Marine Insurance Co. 1011 HounseU D. Suttill 510 House, Ex parte. May, In re ... 725, 731, 1286, 1395 Property and Investment Co. ■». Horse NaU Co 1405 Household, In re, Household v. Household 1611 ■». Jairbum 1352,1832 Houstoun V. Sligo (Marquis) 726, 747, 1077, 1433 Howard <;. Clarke 1173,1357 1). Graves 557 'B.Harris 74 r. Maitland 1946 V. Patent Ivory Manufacturing Co. 366, 402 ■». Kefuge Friendly Society . . . 482, 837, 1001 Howarth v. Brearley 1206 ■». Howarth ... 619, 896, 897, 898, 1491 Howe, Inre 88,184 Ingoodsof ....2032 ■». Finch 1194 ■K.Smith 1797,1950 Howell «. Dawson 1042,1455 Howitt V. Nottingham and District Tram- ways Co 1862 Hewlett u Hodson, Coppard, Inre 2038 Howorth ». Minns 1047 Hoyland Silkstone Colliery, In re 419 Hubback, In re, International Hydropathic Co. «. Hawes 443,783 Hubbard, Ex parte, Hard wick, Inre 226 Hubbuck «. Helms 374,1482 Hudson's Trade-marks, Inre 1854 Hudson, In re. Creed v. Henderson . . . 474, 478 «. Osgerby 537,1858 Hugallr. McKean 1081 Huggins, .EB^arie, Woodward, im re 126 Hughes' Trustees, Ex parte, Euthin Ey., Inre 1319 Hughes, Ex parte, Hughes, In re 115, 116 .Eb ^arte, Thackrah, X« re 127 Inre 61,1999,2002 Ingoodsof 2001 In re, hughes. Ex parte 115,116 V, Anderson, Butler's Trusts, In re 9, 883, 1820 0. Coles 1153 V, Finney 563 V. Little 30, 237, 242, 257, 1045 V. Twisden 823, 1141, 1327, 1750 «. West 798,1402 Hugill 1!. Wilkinson 1152 Hulda, The 1722 Hulkes, In re, Powell v. Hulkes 792 Hull, Barnsley, and West Eiding Ey., In re 1541, 1549 Barnsley, and West Eiding Junction Ey. V. Yorkshire and Derbyshire Coal Co 299 Hulme's Trusts, J» re 1908 number. The 1729 Hume, J» re 1919 In re, Trenchard's Will, Inre 1919 Humphery v. Sumner 40 Humphrey «. Earle 713 Humphreys v. Jones 1769 Humphries, In re, Smith v. Millidge 2024 0. Taylor Drug Co. *. 1439 Hunniugs «. Williamson 749, 1208 Hunt's Trusts, In re 2098 Hunt, Ex parte, Cann, In re 256 J). Fensham 767 •<,. Hunt 913,928,988 I'. Parry, AUord, J« re 2123 •!). Williams 837,1157 Hunter D. Johnson 1594 ■». Myatt 1271 10. Northern Marine Insurance Co. 1010 Huntingdon Election, In re, Clark, Ex parte 610 Hurlbatt and Chaytor, /« re 1927 Hurst u. Hurst 811 II. Parry, Alford, In re 2123 ^•. Taylor 1295 Husband v. Martin, Clark, Inre 305 Hutcheson 1). Eaton 46,1520 Hutchings to Burt, In re 924 r. Humphreys 1801 Hutchinson, Ex parte, Hutchinson, In re 155, 772 26 TABLE OF CASES. Hutchinson, In re, Alexander v. JoUey ... 2101 In re, 'S&W, Ex parte 163 In re, Hutchinson or Plowden, Ex parte 165,772 In re, Hutchinson v. Norwood 1452, 1785 D.Norwood 981 V. Norwood, Hutchinson, In 1452, re 1785 Huth 5;. Lamport 1716 Hutton, In re, Benwell, Ea: parte 133 Huxley v. West London Extension Ey. . . . 521 Hyatt, Jre re, Bowles «;. Hyatt 789,1140 Hyde, Ex parte, Connan, In re 106 and Co.'s Trade-mark, In re ... 1846, 1850 V. Beardsley 55, 525,i539 1). Entwistle 1978 ■». Hyde 762,768,773,900,903,931 Hyettr. Mekin 493 Hyman «, Helm 1432 I. Ida, The 1650, 1730 Ide, Ex partejlAe, In re 107 levers, In goods of 1993 Ihlee V, Henshaw 1856 lUidggj In re, Davidson v. Illidge 792 Illingworth v. Buhner East Highway Board 26, 1073 Illsley V. Randall, Taylor, In re 2127 Imbert-Terry v. Carver 1421 Immacolata Concezione, The 1656, 1727 Imperial Continental Water Corporation, In re 438 — Gaslight and Coke Co. i;. West London Junction Gas Co 838 Ince «. Thorburn 332 Inohiquin (Lord) v. Lyons 1099 Incorporated Law Society, Ex parte, Chaf- fers, In re ... 1733 ■B.Bedford 1793 Ind D. Emmerson 647 laderwick, im re 1753 ■?;. Leech 1081 Indian Zoedone Co., i» re 406,408 Indus, The 1696 Ingham, In re. Craven or King, Ex parte . 148 — — t'. Sachs 1030 Ingle r. M'Cutchan 63,1782 Ingleby and Norwich Union Insurance Co., Inre ;..... 1884 Ihglis «. Stock 1009 Ingram D. Little 1146 Inland Eevenne Commissioners, Ex parte 1561 — ^— V, Glasgow -and South Western Ry 1559 Institution.of Civil Engineers, Inre 1362 Instone ^. Elmslie 1271 Interleaf Publishing Co. v. Phillips ... 751, 1557 International Marine Hydropathic Co., In re 425 International Marine Hydropathic Co. ■». Hawes, Hubbaok, Inre 443, 783 Ipswich Union v. West Ham Union 1386 Irish Land Commission v. Grant 701, 1153 Irwellu Eden 773 Isaac, In re, Jacob v. Isaac 942, 1443 Isaacs, In re. Miles, Ex parte 206, 1586 ■». Hardy 472,1580 Isaacson ii. Durant 704, 718, 719, 720, 721, 1025 Isca, The 1713,1721 Isis, The 1498,1722 Isle of Wight Ry. v. Tahourdin 406 Ives, In re, Addington, Ex parte ... 85, 550, 609 Izard, Ex parte. Chappie, In re 125, 258 ^a; ^arfe, Vanderhaege, JJi re. . . 152,206 J. H. Henkes, The 1698 Jabloohkoff Electric Light and Power Co., Inre 416 Jack, Inre 196 Jackson, Ex parte, Sunderland 32nd Uni- versal Building Society, In re .. 278 In, re, Shiers v. Ashworth 2037 In re. Smith v. Sibthorpe ... 1236, 1821 In re. Walker, i>t re 754, 883 and Woodburn, X» re 1940 1). Astley 487,990 ■!). Hill 1191 -v. Kriiger 1405 II. Munster Bank 359,405 w. Napper 1848 1!. Northampton Street Tramways Co 1102 V. Smith, Digby, Ex parte 1791 Jacob V. Isaac, Isaac, Inre 942, 1443 Jacobs ■!). Credit Lyonnais 1038 1). Dawkes 557 u. Monck 1408 Jacoby v. Whitmore 486,488 Jacques v. Harrison 1397, 1420, 1479 Jagger «. Jagger 953 James, ^jj^flrie, Maiden, i» re ... 94,95,145 Ex parte. Mutual and Permanent Benefit Building Society, /» re... 1526 Inre 95,1160,1733 V. Couchman 625, 1896 «. Dearmer, Dearmer, iin-e 922 V. Despott ,.. , 1412 «i. Lovel 990 0. Nicholas 1562 TABLE OF CASES. 2^ James D. Parry 1842 «. Eioknell 1736 ■». Wyvill... 857 1). Young 1229 James' Settled Estates, la re. 1625, 2042 James's Trade-Mark, In, rv 1842 Jameson 'o. Midland By 290, 491, 603 Japp B. Campbell 1657 Jarrett u Hunter 470 Jaynes, -Sc^artc, Dowson, /« re 198 Jeffery ■». Cancer Hospital 1998 Jeffreys, ^;i;^arte 1069 JeUard, In re 1487, 1900 Jenkin's Case 141, 394 Jenkins, B^c parte; Glanville, In re... 90, 99, 164 v.'&ees 1466 Jeiiklnson, In re, Nottingham Bank, Hx parte 125 r. Brandley Mining Co 369 Jenks'i). Turpin 836 Jenner-Fust v. Needham 1274 Jenney r. Mackintosli 1418 Jennings' Estate, ire re 1243 Jensen, In re, Callow, Ex parte 125, 198 Jersey (Barl) v. Neath Union 1226 Jesus College, Cambridge, Ex parte 1128 Jetleyr. Hill 914 Jewson V. Gatti 1295 Jobling, Ex parte, Wheal Buller Console, In re 444 Johann Sverdrup, The 1679 John, In goods of 2008 John Mclntyre, The 1685 Johnson, Ex parte, Chapman, In re 100, 236, 255, 260, 762 Ex parte, SoimsoTi, In re 102 In re 460 In re, Johnson, Ex pa/rte 102 Jra re, Hickman D. Williamson ... 2029 Jm re, Sly r. Blake 802,1145 ■ In re, Wagg r. Shand 805 and Tustin, im re 1939 and Weatherall, In re 1756 v. Altrincham Permanent Benefit Building Society 276 v. Croydon (Mayor) 513 «. Hook 1866 ■». Johnson 936 Johnston, In re. Cockerel! v. Essex (Earl) 1578, 2055, 2070, 2072 1). English 1403 -^- V. Great Northern Ry 1303 V. Hill, Dawson, In re 2080 V. Johnston 627, 824, 963 ■». Salvage Association 1019, 1458, 1534 Johnstone's Settlement, In re 1628 Johnstone, In re, Abrams, Ex parte 138 ^ In re, Angier, Ex parte 200 In re, ^in^letoxi, Ex parte 89 Johnstone*. Browne 606, 930 D.Marks 966 1). Milling 490 e. Spencer (Barl) 496 Jonas v. Long i 557 Jones's Trade- mark. In re 1835 Jones, ^a!^(wte, Stephens, /m re 203 In re 1160,1624,1755,1902 7» re, Calver «. Laxton 786 In re, Greene v. Gordon 2096 J» re. King, .£52! ^arie 1750 V. Andrews 31, 651 V. Ashwin 735, 1328 •!). Blake, Blake, In re 802, 811, 1881 f. Cheverton 87 V. CurUng 521, 532, 541 1). Dorothea Co 1101 -!). Harding 2004 ». Harris 1507 v. Hawkins, Stocken, In re 801 V. Jaggar 613 'U.Jones 1068 i). Liverpool Corporation 1296 «. Mason, Mufiett, In re... 795, 2035, 2079 1). Parry ^59 ti. Eichards 661 V. Scottish Accident Insurance Co.... 1417 V. Slee 830 D.Thomas 635 J). Whitaker 1531 1). Williams, Williams, In re 82, 210, 1808 Jones' Trustees v. Gittens 555,1538 Jonmenjoy Coondoo D. Watson 1391 Jordan, In re, Harrison, Ex parte 139 In re, Kino ii. Picard 932, 933 Joseph «. Lyons 241,259 Josolyne 1). Meeson 1211 Jowett V. Idle Local Board 852 Joynt's Divorce Bill 904 Judge 1). Bennett 567, 585 Judkin's Trusts, In re 791, 971, 2123 Jupp, J« re, Jupp II. Buckwell 916 1). Powell 1146 Justice V. Fooks 1137 Justitia, The 1656 Kaltenbach «. Lewis 1517 Kane's Trusts, In re 1630 Kannreuther v. Geiselbrecht, Kloebe, In re 794, • 1034 Karo, The 1695 Kaye T). Sutherland 1417 Kearney v. Great Southern and Western Ry 283 28 TABLE OF QASES. Kearaley, Eos pivrte, Genese, In re ... 139, 170, 173, 197 Keay «. Boulton 2034 Keeley'a Trusts, In re 1905 Keeling, In re, Blanohett, Ex pa/i'te 105 Keep's Trade-mark, i» re 1855 Keeping and Gloag, JTa J'e 1766 K.dh.oe, In goods of 1997 V. Waterf ord and Limerick Ey iOO Keith D. Burke 221 ■». Butcher 1407 f. Day 1273 Kelday, In re, Meston, Ex parte 107 Kellard «. Eooke 1192 Kfller, J»»-e 23 Kellock, In re 1752, 1754 Kells Union, i?i re. Smith, ^a; ^arie 1125 Kelly's Settlement, In re. West v. Turner 961 Kelly 1). Browne 766,1643 ■!). Kellond 617 1). Kelly 810 ■ V. London and StafEordshire Fire Insurance Co 1005 Kelson 1). Ellis, Ellis' Trusts, 7« re 1486 Kemmis «. Kemmis 2124 Kemp, In re 972 Jji re. Luck, ^a; yarie 101,162 ■!). Goldberg 1268,1437 «. Haynes, Haynes, J» re 1633,2075 Kenmare (Lord) i;. Casey 675,1498 Kennard 0). Simmons 1070, 1536 Kennedy, Ex parte, Willis, In re 228 ■ D. Lyell 1826 1). Purcell 338 Kensington (Lord), In re. Bacon v. Ford 1061 Kensit v. Great Eastern Ey 681, 1971 Kent's case 434,447 Kenyon's Estate, In re, Mann r. Knapp . . . 2089 Kenyon v. Eastwood 549 Kerford v. Seacombe, Hoylake, and Dee- side By 1116 Keroula, The 1651 Kerr v. Chambers 710 Kershaw, iJi re, Drake «. Kershaw 2112 V. Kershaw 934 i>. Sheffield (Corporation) 868 Keswick Old Brewery Co., i« re 414 Kettle-well v. Watson 629, 1950, 1959 Kewney «. Attrill 774 Keyse 1). Keyse 895 Kibble «. Payne, Payne's Settlement, In re 1921 Kiddies. Lovett 490,604 - — ■!). Kidston 1648 KifE V, Eoberts, Eoberts, In re 28, 1398, 2065 Kilford ». Blauey, Meere, In re 2117 Killmister 1). Fitton 1180 Kimber I). Paiavioini 693 Kimberley North Block Diamond Mining Co., In re, Wemher, Ex parte 391 King's Estate, Jra re 1869,2092 King, Ex parte, Ingham, In rr 148 Ex parte, Jones, In re 1750 In re, Mesham, Ex parte 150 0. Chick, Talbott, In re 808 V. King 2020, 2104, 2110 'K.Lucas 926 V. Oxford Co-operative Society 560 Kingdon, In re, Wilkins v. Pryer ... 1995, 2098 ■!;. Kirk 1799 Kingsbridge Union v. East Stonehouse Guardians 1388 Kingstown Commissioners, .EiB jjoj-fe 1539 Commissioners, Ex parte. Local Government Board, In re ... 530 Kiunaird u Trollope 1278 Kino V. Picard, Jordan, In re 932, 933 Kintore (Countess) v. Kintore (Earl) 1604 Kirby Hall, The 1685,1724 Kirk, Ex parte, Dashwood, In re 138 //i re, Nicholson ■!;. Kirk 2025 V. Coates 849 Kirpatrick v. South Australian Insurance Co 1005,1360 Kirwan's Trusts, In re 2099,2100 Kirwin ■». Hines 666 Kloebe, In re, Kannreuther r. Geiselbrecht 794, 1034 Knatchbull's Settled Estate, In re 1635 Knebworth Settled Estates, In re 1636 Knight, Ex parte, Firbank, In re 88 — — In re. Cooper, Ex parte 143 In re, Knight'!). Burgess 2067 In re, Knight v. Gardner 34, 764, 800, 812 In re, Smith, Ex parte 152 '!). Bowers 849 'U.Clarke 702,1497,2138 -0. Coales 56 V. Cotesworth 1013 V. Gardner, Knight, In re 34, 764, 800, 812 D. Whitmore 1860 Knight's Trusts or Will, In re 523, 541, 1898, 1913 KnUl V. Prowse 62 Knott, iM re, Bax 1). Palmer 1897 Knowles, In re, Eainford v. Knowles 2023 T). Booth 558,830,831 'U.Roberts 1505 Knowles' Settled Estates, In re 1620, 1629 Knox V. Mackinnon 1874 Koster, Ex parte, Park, In re 608 'V.Park 608 Krantzcke v. Eobinsou 954 Kronprinz, The 1696 Kuhn's Trade-marks, M re 1854, 1855 TABLE OF CASES. 29 Kurtz V. Spence ... 750, 1135, 1353, 1854, 1355, 1504 Kylei). Barbor 865,1365 Kyshe v. Alturas Gold Co 358 La Trinidad ®. Browne 764 Lacey, i» re, Taylor, J?k parte 106 ». Waghome 1246 and Sons, Jrere 1768,1766 Lacon r. TyrreU 1275 Lacy B. Stone, Pitt, /» re 306,2121 Ladda I). Walthew 646 Ladywell Mining Co. v. Brookes or Huggons 356 Laertes, Cargo ex 1662,1705 Laine, /« re, Bemer, ^K^flj'f/! 147 Lake 1;. Bell, Bell, /» re 1139 V. Haseltine 1441 Lamb, ij} re, Gibson, Ux parte 99,168 Lamb's Trusts, In re 1908 Lambert, Jb re 745 In re, Stanton v. Lambert 913, 1577, 2120 Lambert's Estate, i» re 1254 Trade-Mark, 7k re 1848 Lambeth Guardians v. Bradshaw... 1165, 1387, 2010 Lambton v. Parkinson 525, 1447 Lamond, Um parte, Dod, Longstaffe & Co., Inre 557,1776 Lamplugh v. Talding Overseers 700, 1379 Lancashire Cotton Spinning Co., In re, Cainellej, & parte 423 and Yorkshire By., In re 1124 — — ■ V, Green- wood 292 V. Knowles 1970 Telephone Co. v. Manchester Overseers 1374 Lancaster, ^a!^a;'ie, Marsden, i?s re 162 The 1711 •!;. Allsup 1334 ■ 1). Harlech Highway Board 1981 JJ. V. Newton Improvement Commissioners 1982 JJ. V. Kochdale (Mayor) 1982 Land Development Association, In re, Kent's case 434,447 Land Loan Mortgage and General Trust Co. of South Africa, In re, Boyle's case 453 L^dau, /m re. Brown, ^ai^arte 204 Landergan «. Feast 1426 Landowners' West of England Drainage Co. v.Ashford 540 Landrock, In re, Fabian, Etc parte 131 Lane, iJJ re, HiU, .EB^arfe 240 Lane, In re. Lane v. Eobin 1034 1). Collins 849 V. Lane, Llewellyn, In re 802 I). Moeder 1100 «. Rhoades, Ehoades, ia re 2073 1). Eobin, Lane, Jm re 1034 1). Tyler 260, 1093 Langen ■!). Tate 757 Langworthy D. Langworthy 887 Lanyou v. Martin 475 Lapington «. Lapington 892 Lapthoru v. Harvey 1981 Lapthorne r. St. Aubyn 265 Larkin'i). M'lnerney 1422, 1782 Larking, ira re, Larking u Larking 2091 Lascelles, In re, Genese, Bx parte, 27, 609 Last's. London Assurance Corporation 1003, 1568 Latimer 17. Harrison, Harrison, Jw re 785 1). OfiBcial Co-operative Society ... 684 Lauderdale Peerage, The 748, 882, 1026, 1599, 1600 Lavery 1;. Purssell 472, 1794 Lawi). Philby ,. 1420 Lawes I'. Maughan 1533 Lawley ». Merricks 834 Lawrence ■!). Lawrence 43 1). Norreys (Lord) 1436 Lawsr. Smith 1651,1721 Lawson i>. Vacuum Brake Co 757 Lawton r. Elwes, Corsellis, In re 981, 1779 Lay, J« re. Woodward, ^a!j7arie 126 Lazarus, In re, Godfrey, Ex parte 173 Le Blond 1J. Curtis 1472 Le May r. Welch 1858 Le Ph6mx, J?i )e 1004 Lea, In re. Lea v. Cooke 306 — V. Abergavenny Improvement Commis- sioners 1968 — «. Cooke, Lea, J?i re 306 — V. Facey 7, 878 — V. Parker 552 — Conservancy Board ■P.Hertford (Mayor) 1311, 1807 Leader r. Dufiey 959 1). Hayes 1101 Leaf's Trade Mark, In re 528, 1839, 1842, 1849 Leahy v. O'Grady, Harnett, In re 754, 805 «. Tobin 1403 Leamington Priors Gas Co. v. Davis 839 Learoyd D. Whiteley 1873 Leathersellers' Co., Ex parte. Tickle, In re 142, 393,1101 Leaver, Ex parte. Metropolitan (Brush) Electric Light and Power Co., In re 438 Ledbrook B. Passman 1246 Ledgard v. Bull 1345 Ledger, .£te^;arie, Postlethwaite, /?i re ... 169 Leduc D.Ward 1406, 1661 Lee«. Abdy 998,1037 — V. Barnes 254 30 TABLE OF CASES. Lee V. Chapman, Mx parte, Asphaltio Paving Co., In re 427, 491 - «. Dunsford 1269 - V, Neuchatel Asphalte Co 400 - 1). Soames 1933 - V. Turner 235 - and Hemingway, /» re 522 Leeds r. Leeds 888 ■ — — (Mayor) ■!). Eobshaw 869 Estate Building Co. ■». Shepherd... 361, 364 Leek Improvement Commissioners v. Staffordshire JJ 1983 Lees, Zn re 1164 Leetei). Wallace 1001, 1522 Leggott 1). Western 772 Leicester Club and County Race Course Co., In re 433 Urban Sanitary Authority v. Holland 1065 Leicestershire Banking Co., -Ec parte, Dale, In re 207 Leigh i>. Burnett 1248 •<). Dickeson 1076,1235,1821 D. Leigh 1876 . • 1). Rumney, Revill, In re 806 Leighton u Price, Price, Jb )•« 1627 Leitch v. Abbott 658, 1440 Lemon v. Simmons 632, 941 Lemons, Jra re 976 Lenders v. Anderson 1417 Lenham I'. Barber 512 Lennox, Ex parte, Lennox, In re Ill, 612 Leonard v. Wells 1837, 1843, 1847, 1850 Leonard's Trade Mark, In re ,..1837, 1843, 1847, 1850 Leptir, The 1673 Lesingham's Trusts, /?i re 907, 2035 Leslie, Baj^arie, Leslie, J7i 7-e 116 — — 1). Cave 650 ■!). Clifford 1446 Letterstedt v. Broers 1912 Lever v. Goodwin 1830 Leverington, The 1690 In goods of 2002 Levy's Trusts, In re 192 Levy V. Abercorris Slate Co 368, 369 V. Merchants' Marine Insurance Co. 1010, 1017 t). Polack 241 ■,;. SewiU, Moss, J?i re 1023,1282 Lewin, /rere 1397 D.Jones. 1276 V. Killey 2018 ij. Trimming 522,539 1). Wilson .' 1149 hewis, Hx parte 1176,1223,1481 Ex parte, Clagett, In re ...... 1022, 1060 J?8 ?-c, Foxwell «. Lewis 495,2109 In re, B.eldeT, Ex pa/rte 101,168 Lewis, In re, Lewie ■». Williams 42 i>. Aberdare and Plymouth Co 1271 V. DriscoU 234 V. Fermor 15 <;. Graham 1202 ■B.Herbert 1411 ■B.James 703,1225,1425 ■B.Jones 18 ■B.Lewis 551 ■B. Pritchard, Pugh, J» re 543 V. Ramsdale 1891, 1517 ■ V. Weston Super Mare Local Board 865 ■B. Williams, Lewis, J» re 42 Lhorieux ■b. Hong Kong and Shanghai Banking Corporation 1410 Licensed Victuallers' Newspaper Co. v. Bingham 1828 Liebig's Extract of Meat Oo. i: Anderson 1832 Liffey, The 1706,1730 Light «. Anticosti Co 758 Lightbody's Trusts, J» re 1917 Lightbound v. Bebington Local Board 867 Lightbown v. McMyn, MoMyn, In re 784, 914, 1535 Lilley D. Rankin 216, 482, 8.S8 Limehouse Board of Works, Hx parte, Val- lance, J?i re 748 Limpus V. Arnold 2127 Lindo, In re, Askin d. Ferguson 2106 Lindsell u. Phillips, Powers, In re ... 804, 1148, 1152 Lindsey, Ex parte. Bates, In re 106, 112 Line ». Warren 27,511, 512 Linen and Woollen Drapers' Institution, In re 1564 Linton, Ex parte, Linton, In re... 143, 607, 902 ■K.Linton 143,607,902 Linwood v. Andrews 211, 462 Lion Mutual Marine Insurance Association V. Tucker 456, 1019, 1803 Lipscombe, ^a; ^arie, Lipscombe, ire re ... Ill Lisbon-Berlyn Gold Fields r. Heddle 1414 Lishman «. Christie 1660 Litchfield ■b. Jones 68, 611, 666, 1742 Little, Jw re 983 Littleton (Post-mistress), JJc^arie 640 Liverpool Guardians v. Portsea Overseers... 1382 Liverpool Household Stores Association r. Smith 638 Livesey, 7m re 156 Livietta, The 1655, 1710, 1791 Llangennech Coal Co., In re 293, 1187 LleweUiu, In re, Llewellin v. Williams ... 1633 Jm j'c, Lane «. Lane 802 Lloyd, In re, Edwards ■b. Lloyd 1640 In goods of .; 2006 «. Bottomley 1850 ■B.Lloyd 833,2067 Generale Italiano, J«. /r 409 Lloyd's Banking Co. i: Jones 1236, 1251 TABLE OF CASES. 31 Lloyd's Trade-mark, In re 1850 ■ Trustees, Jra ?•« 1912 Local Government Board, In re, Kings- town Commissioners, Ex parte 530 Look V. Willis, Bradbrook, In re 1818 Locke r. Dunlop 2034 — - f. White 1466,1501 Loekhart ■». St. Albans (Mayor) 1071 B.Webster 476 Lockwoodi). Sikes 1616 It. Tunbridge Wells Local Board 1359 Loder's Trusts, i» ?'e 939,1285 Lofthouse, 7?j re 973,1882 Lomax v. Ward 158 Long, Ex parte, Long, In r.- 106 r. Lane...., 2050 Longfield ». Bantry 2089 Longnewton, The 1692 Longstaffe, In re, Blenkarn v. LongstafEe. . . 762 London (Mayor), Ex parte 1128, 1768 Ex parte, Sion College, In re 1130 u. Brooke 927 Loudon Alliance Discount Co. v. Kerr 931 London, Brighton, and South Coast Ry. V. Truman 1311, 1546, 1807 London Celluloid Co., In re 383 Bayley and Hanbury's case , 449, 12OO London, Chatham and Dover Ey. v. South- BastemKy. 1465,1551 London Financial Assocation 1;. Kelk 401 Founders' Association r. Clarke .. . 381 Land Company e. Harris 1445 Soad Car Company B. Kelly 1448 School Board T. Duggan 1593 ■ V. St. Leonard's, Shoreditch 1373 ■ V. Wood 1593 ■ V.Wright 1594 Scottish Permanent Benefit Society v. Chorley 528,1778 Steam Dyeing Company v. Digby 536,1478 Street, Greenwich, and London, Chatham, and Dover Ey., In re 1131 Tilbury, and Southend Ey. v. Kirk 664 • Wharfing Co., 7» re 540 • and Blackwall Ey. ■». Cross 51, 1121, 1436 and County Banking Co. v. Firmin, Firmin, /» re 612 ■ and County Banking Co. v. London and Elver Hate Bank 1304 • and County Banking Co. d. Terry, Sherry, J™ re 80, 1360, 1528 and County Plate Glass Insurance Co., Inre 379 and Lancashire Fire Insurance Co. v. British American Association. . . 56 London and Lancashire Paper Mills Co., In re 439,440,1239, 1949 and Provincial Electric Lighting Co., In re. Hale, Ex parte ...... 349 and Provincial Fire Insurance Co., In rf 378 and Provincial Provident Associa- tion, Inre, Mogridge's case....„ 452 and Southern Counties Freehold Land Co., i» re 357 and Staffordshire Fire Insurance Co., In re, Wallace's case 350 and Westminster Supply Associa- tion t>. Griffiths 385 and Yorkshire Bank v. Belton 1109 V. Cooper 651 1). Pritt...: 487 Lord V. Hayward, Smith, J?j re 2025 Lord Advocate r. Young 1605 Loring v. Davis 1524 Loughborough Highway Board v. Curzon 26, 1984 Lound V. Grimwade 484 Lovat Peerage, The 745,1599 Love, In re, Hillu. Spurgeon 813, 1896 c. Bell 1227 v. Hills, Miller, In re, French, In re 1396, 1752 Lovell V. Wallis 625, 762 Lovely v. White 72 Levering, Ex parte, Ayshford, Ja re 166 'Ex partejM.-avmW, In re 124 Lowcock v. Broughton Overseers 712 Lower. Dixon 1324,1531 ^■. Fox 619, 940, 1169, 1825 Lowenthal, In re, Beesty, Ex parte 84 Lowestoft (Manor of). In re, Eeeve, ^a; parte 596, 1126 Lowndes, In re. Trustee, li.r parte 159, 194, 983 Lowry v. Lowry 2064 Lowther u. Curwen 1719 r. Heaver 1503 Lucas, i» ;-e, Parish r. Hudson 44 V. Harris 59,771, 1363, 1455 V. Martin 173 Luck, Ex pai-te, Kemp, In re 101,162 Luddy, i» re, Peard II. Morton 2044 Luddy's Trustee v. Peard 1740 Ludford, Jwre 158, 1644 Ludmore, Inre 158, 1644 Lulham, In re, Brinton i\ Lulham 827, 952, 1867 Lumbr. Beaumont 1449,1498,1504 Lumley v. Nicholson 1521 v. Simmons 239, 244, 245, 246, 252 Lund ®. Campbell 54,530 Lush, In goods of 2007 Lutton'!). Doherty 862 Lybber. Hart 121,1090,1808 Lydia, The 1729 32 TABLE OF CASES. Lydney and Wigpool Iron Ore Company v. Bird 22, 356, 537, 1443, 1744 Lyell U.Kennedy 648, 650, 663, 664, 665, 748, 1149 Lynch v. Commissioners of Sewers 741, 1113 V. Lynch 607, 894 1). Macdonald 1471 ■ 1). Wheatley 717 Lyndon's Trade-mark, /» 7'e 1845 Lyon V. Morris 252, 1044 Lyons, The 1652 Lytton (Earl) D. Devey 1135 M. M. (falsely called D.) v. D 885, 887 Maberly, In re, Maberly v. Maberly 1876 Maberly's Settled Estate, In re 1629 McAllister «. McAllister 803 McAlpine, Ex parte, McAlpine, In re 176 MacArthurt). Hood 1406 McAulifEe and BaUour, In re 1884 McBean r. Deane 691 McCane, In goods of 2007 McCartan v. North-Eastern Ey 284 M'Carthy v. Cork Steam Packet Co 36 McCauU V. Strauss 468, 1512 M'Clean v. Prichard 507,706 McClellan, In re, McClellan v. McCIellan 523, 542, 809 ■ V. Clark, Sayer, In re 2086 McConnell, In re, Saunders i. McConnell 39 M'Cormick i). Heyden 1168,2013 McDermott, Ex parte, McHenry, 7;» re ... 177 M'Devitt u Connolly 1813 McDonald v. Cloghessy, Cloghessy, In re 809 Macdonald ■!). Lochrane 514 V. Tacquah Gold Mines Co. ... 70 ■». Whitfield 220,326 Macdonnell v. Marsden 1189 Macdougal d. Knight 634 MacDowall's Case 442,1188 Macey ■». Gilbert 252 M'Evoy V. Waterford Steamship Co. 554, 1196, 1290 McBwan v. Crombie 807, 812 Maofarlane, In goods of 1995 ■». Lister 1788,1791 M'Garry 1). White 769, 931, 1455 MoGibbon r. Abbott 328, 2016 McGlone I). Smith 1971 McGough r. Lancaster Burial Board 697 McGowan, In goods of 2012 McGreevy r. Eussell 323,478 McGregor ii. McGregor 473, 916 McHardy v. Liptrott 559 Macharg i'. Stoke-upon-Trent Assessment Committee 1372 Machellr. Newman, Thompson, In re 2031 McHenry, Ex parte, McHenry, In re 118 In re 35,150,205 Credit Co., Ex parte ... 91 McVeimott, Ex parte .. . 177 McKenry, Ex parte 118 M'llwraith v. Green 1428, 1446 Mackay, Ex parte. Page, In re 123 Shirley, J» re 104,444 1. Banister 550 e. Men-itt 156,239 Mackellar -!). Bond .'. 331 M'Kendricki). Buchanan 709 Mackenzie and Ascot Gas Co., In re 52. 874 Mackie r. Herbertson 953 Mackintosh, Ex parte. Mackintosh, In re 194 Mackreth ■(■. Walmsley 1535 Maclaren v. Compagnle Frangaise de Navigation i Vapeur 1689 McLean's Case 445 McLean v. Clydesdale Banking Co 20, 218 Macleans. Currie 1110 M'Lean t. Simpson 2048 McLean t;. Smith, Pearoe, ira w 810 Macleod v. Jones 1022, 1260, 1281, 1738 MacMahon, Ex parte 1176 McMahon, In re, McMahon v. McMahon... 843, 1242 McManus r. Cooke 474, 676, 1794 McMurdo, Ex parte, Sedgwick, In re 108 M'Myn, In re, Lightbown v. M'Myn ... 784, 914, 1535 Macnamara's Estate 1244,1361 M'Namara 1). Malone 1777 Macnicoll r. Pamell 770 Macpherson's Estate, In re, Macpherson v. Macpherson 945 V. Scottish Eights of Way and Eecreation Society 673 McTear, Ex parte, McTear, In re 170 McEae, In re, Forster v. Davies ... 33, 803, 1329 Norden«. McEae ... 803, 809, 1329 Macreight, Iii re, Paxton «. Macreight 59, 1028 Maddever, In re. Three Towns Banking Co. f. Maddever 827,1073 Maddock f. Wallasey Local Board 840 Madgwick, /?! re 1128 Magarill r. Whitehaven Overseers 710 Magee, Ex parte, Magee, In re 198 Magnus r. National Bank of Scotland 730, 1448 r. Queensland National Bank 77, 1284 Magrathc Reichel 691,727 Mahler, In re, Honygar, Ex parte 89 Maidstone and Ashford Ey., ire re 1129 Maidstone Union v. Holborn Union 1383 Main, The 1683 Malcomson v. Malcomson 973, 1880 Maiden, In re, James, Ex parte 94, 95, 145 Malen, In goods of 2002 Maley, In goods of 2006 TABLE OF CASES. 33 Mallam v. Bean 512 Mallet «. Hanley 1318 Malone«. Fitzgerald 638, 661 Mammatt v. Brett 409 Mammoth, The 533, 535,1728 Manchester (Mayor) r. Hampson 870 Overseers v. Headlam 1379 i'. Ormskirk Guar- dians 1385 Economic Bailding Society, In re 32,1395 Sheifield, and Lincolnshire Ry. c. Brown 295 Sheffield, and Lincolnshire Ey. t\ North Central Waggon Co. 232, 293 and Oldham Bank, J» re 454 r. Cook ... 490, 601, 736 Mander v. Harris, March, In re 916 Manisty v. Churchill, Churchill (Lord), In, re ; 597, 1.534 Mannu. Brodie 673, 1606 V. Knapp, Kenyon's Estate, In re... 2089 Manners «. Mew 1250 Manning, In re 609 «. Adams 1189 D. Moriarty 1423 Mansel, Jra re, Newitt, JBx parte 92 J» re, Rhodes r. Jenkins 1896 In re, Ssijei, Ex pa/rte 92 • f. Clanricarde 764 Mansell, Ese parte, Chillington Iron Co., Inre 407 Manton v. Tabois 2071, 2089 Maple «. Shrewsbury (Earl) 1427 March, Ex parte, Richards, In re 204 . In re, Mander v. Harris 916 Marcus, 7a re, Marcus t'. Marcus ... 1578,2003, 2036, 2070 Marcy v. Morris 342 Margary v. Robinson 2001, 2005 Margetts, In re, Board of Trade, Ex parte 93 Marine Insurance Co. v. China Transpacific Steamship Co 1016 Marion, The 1648 Marlborough's (Duke) Settlement, In re, Marlborough (Duke) v. Majoribanks 1634 (Duke) v. Sartoris 1630 Marony v. Taylor, Wickham, Inre 1434 Marrett, In re, Chalmers v. Wingfield 1027 Marriott «. Chamberlain 638,662 Marsden, In re, Bowden v. Lay land... 789, 1140, 1955 In re, Gibbs v. Layland ... 1140, 1955 Jj8 re, Lancaster, -Eb ^arfe 162 Marseilles Extension Ry. and Land Co., Smallpage and Brandon, In re... 220, 421, 1037 Marsh, Ex parte, Maish, In re 199, 1762 J» re. Mason 1). Thome 2095 and Granville (Earl), J» re 1937 Marshall). Maolure 468, 1326 Marshall ■». Edelston, Owtram, J?J re 185 ■!). Jones 1499 • V. Marshall : 1415 Marshfield, In re, Marshfield v. Hutchings 749, 1151, 1260 Marsland, Jb 7'e 919, 1028, 1059 I). Hole 30 Marten V. Rocke 79,1590,1921 Martin's Estate, In, re 1454 — — Trusts, i» re 1917 Martin, Ex parte, Strick, In re 114 J» ?'e. Board of Trade, -Kb ^arie. . . 91 J» re. Smith «. Martin 2047 In re, Tuke v. Gilbert '. 2040 In goods of 1783 V. Beauchamp (Earl) 1433 u. Connah's Quay Alkali Co. 1197 V. Dale 957 ■;;. Freeman, Taylor, Jffi re ... 309,2082, 2113 r. Fyfe 56 r. Hanrahan 708 ■!;. Lacon, Christmas, J» re 302 O.Martin 2053 ti. Russell 1440 ■!). Spicer 657,1075 t. Treacher 656 1). Tritton 1042,1643 ■w.Wyatt 698 Martineau, Jm re 1578 Martinson r. Clowes 41, 1259, 1743 Martyn, In re, Toutt's Will, In re 1908 Mary Lohden, The 1691 MarzettiD. Smith 753,1670 Mason v. Ashton Gas Co 840 t. Bishop 2002 r. Rhodes 1246 ■ II. Thorne, Marsh, /» re 2095 ■!). Westoby 1265,1454 Masonic and General Life Assurance Co., In re 414, 799 Massey and Carey, Inre 1776 ■!). Heynes 1418 Massy v. Rogers 2079 Masters r. Green 1109 Matheson, In re 410 Mathews v. Carpenter 1064 V. London Street Tramways Co. 1287 v. Ovey 559 Matthew, Ex parte, Matthew, In re 108, 222, 1358 Matthews B. Munster 211 Maugham, Ex parte, Maugham, In re ... 86, 103 Maughan, iw re, Monkhouse, jEic^arie ... 119 Maullin D. Rogers 1482 34 TABLE OF CASES. Y, Ex parte, Brightmore, In re 110 ■ Ex parte, May, In re 117, 209 In re, nouse. Ex parte 725,731, 1286, 1395 • In, re. May, Ex parte 117, 209 1). Haroourt 52 V. Newton 80i, 806 Jfayer «. Mindlevioh 256 Meager, Ex parte, Pellew, In re 607, Sii — - V. Pellew 606, 944 Meakini). Morris 44, 966 Medical Attendance Association, In re, Onslow's case 444 Medlock, In re, EufiBe v. Medlock 2123 Medway Union D. Bedminster Union 1384 Meehan ■!). Meehan 1508 Meek 1). Wendt 1519 Meere, In re, KiUord v. Blaney 2117 Megson v. Mapleson 1096 Main, Ex parte, Eidgway, In rr 146 Melaugh V. Chambers 716 Meldrum 1). Scorer .-. 1399 Mellis V. Shirley Local Board 482, 516, 874, 875 Mellor*. Daintree 2019 V. Porter 983, 1267 i'. Swire, Swire, /« ?w 1481 ■!). Thompson 38,1473 Melly, /»?■« 1160' Melville v. Stringer 239, 245 Memnon, The 1688 Mercantile Mutual Marine Insurance Asso- ciation, In re, Jenkins' case 141, 394 Mercer, Ex parte. Wise, In re 825 Merchant Banking Co. v. London and Han- seatic Bank.. 1267 Prince, The 1684 —^ Taylors' Co. In re 1765, 1770 Merchants of Staple of England v. Bank of England 75, 389, 741 Meredith, The 1649 /» re, Meredith ■!). Facey 180 Merivale u Carson 634 Merriraan, Ex parte, Stenson, In re 151 Mersey Docks v. Henderson ... 1717, 1805, 1810 Docks V. Llaneilian Overseers 1371 Docks ■!). Lucas 1567 Eailway, -Zm rff 1548 Steamship Co. v. Shuttleworth 1477 Steel and Iron Co. v. Naylor 426, 477, 1583 Martens i;. Walley, Serjeant, ift re 2035 Merthyr Union v. Stepney Union 1384 Mesham, Ex parte. King, In re 150 Meston, ^ic^aj'te, Kelday, J« re 107 Metcalfe, In re, Metcalfe v. Blencowe 1764 Metropolitan Bank t). Pooley 188, 300, 408, 516, 1170, 1464, 1465 Board of Works v. Anthony... 1211 V. Eaton 1218 11. Heaton ... 1218 Metropolitan Board of Works v. Lathey . . . V. Nathan ... (Brush) Electric Light and Power Co., In re. 1212 1213 438 Leaver, Ex parte _ Electric Light and Power Co., In re, OSoi, Ex parte ... 761 Eailway «. Wright 1475 Meyler 1). Meyler 623 Michael, In re, Dessau v. Le win 762 Michel ?). Mutch 1489 Micklethwait -u. Newlay Bridge Co. 621, 1971, 1986 Middlesborougb Building Society, In re 274, 280 In rCf Wythes, Exparte 274 Firebricli Co., J» ?•« 418 Overseers v. Yorkshire (N. E.) JJ 545, 1980 Middlesex JJ. D. Eeg 1537 Midland EaUway ■«. Freeman 17 V. Miles 1547 1). Eobinson 1546 ■ ■!). Walton 852,853,868 Midleton (Lord) v. Power 596, 1181, 1182, 1183 Milan Tramways Co., i« re, Theys, Ex parte 63, 426, 1500 Mildred t\ Maspons 1511 Miles, Ex parte, Isaacs, In re 206, 1586 V. Jarvis 1321, 1488 r. New Zealand Alford Estate Co. 385, 456, 474, 479 1). Scotting 1232 t'. Tudway 2038 MiUord Haven Ry. and Estate Co. v. Mowatt 1245 Miliars. Harper 657, 1440 V. Toulmiu 22, 1475 Miller, In re. Love v. Hills 1396, 1752 V. Douglas 782 i). Gulson 959 Miller's case 394,442 Dale and Ashwood Dale Lime Co., In re ^07 Millichamp, Goodale and Bullock, In re... 2126 MilHkin r. Snelling, Colyer, In re ... 1893, 2072, 2127 Mills, i?s r«. Mills «. Mills 2096 In re, OfScial Receiver, Ex parte ... 163 ■». Armstrong 1287, 1647 - ■». Fox 969 r. Mills, Mills, In re 2096 Mills' Estate, 7» re 522,1129 Trusts, Tare 498,1903 Minward-i). Midland Ey 1193 r. Millward 899 TABLE OF CASES. 35 Milne, In re, Giant v. Heysham 2050 Milner, Ex parte, Milner, In re 179 1). Great Northern Ry 1199 Milnes v. Huddersfield (Mayor) 1963 u. Sherwin 11,786 Mineral Water Bottle Exchange Society v. Booth 487,1860 Minifie r. Banger 71.3 Mining Co. of Ireland v. Delany 66, 988 Miixii&tt, Ex parte ! 1053 Minshull 1). Brinsmead 478 Missouri Steamship Co., Monroe's claim, A« 1037,1666 Mitchell, In re, Conningham, Ex parte ... 96, 1026 In re, Mitchell v. Mitchell 1526 and Governor of Ceylon, In re... 49 ■». Cantrill 677 ■!). Darley Main Colliery Co 653 ■». Mitchell, Mitchell, im TO 1526 Mitchell's Trade-mark, Inre 1855 Mitchelstown Inquisition, Inre 505 Mitchison r. Thompson 1104 Mocatta, In re, Mocatta v. Mocatta 2067 Mogg«). Clark 694,1208 Mogridge's case 452 Mogul Steamship Co. ■». Macgregor ... 459,986, 1834 Moir, TJt re, Warner B. Moir 2075 Molony v. Molony 1449 Molyneux and White, Inre 779 Monarch, The 1703, 1710, 1711 Moncktonto Gikean 1942 Monet, Ex parte, Dudley, In re 611,1742 Monetary AdTance Co. v. Cater 217, 255 Monk, In re, Wayman v. Monk 693 Moukhonse, -Etej^arie, Maughan, i» j-e ... 119 Monroe's claim, Missouri Steamship Co., Inre 1037,1666 Montagu's case 392 Montagu, In re, Montagu ■». Festing 980 V. Land Corporation of England 1509 Montague t). Sandwich (Earl) 2090,2113 Montrose (Dowager Duchess) «. Stuart ... 1606 Moody and Yates, In re 1937, 1939 Moon, Ex parte. Moon, In re 170 Inre 208 In re, Dawes, Ex parte 26, 180, 192, 202 In re. Moon, Ex parte 170 Moorcock, The 1301, 1719, 1988 Moore, Ex parte, Faithfull, In re 108 Ex parte, BickinBOTi, In re 155 Inre 87 In re, Moore «. Johnson 795, 1614 In re, Moore ». Eoche 2093 In re, Trafford v. Maconochie 2078 In goods of 798,2015 V. Bemrose, Waiters, Inre 525 Moore «. Deakin 1468 0). Explosives Co 347 ■ ?). Ffolliot 2099,2103 1). Johnson, Moore, /» re 795,1614 11. Lambeth Waterworks Co 1962 «. Moore 910 ■». Palmer 1189 ■». Eoche, Moore, Jra 7'e 2093 1). Simkin 724 1!. Walton 1782 Moore's Estate, /w re 2077,2114 Moorhouse 1). Linney 509 Mordey and Co., In re 380 Mordy and Cowman, J» re 1946 Morgan, J» re 1625 In re, Owen v. Morgan ... 40, 659, 1505 1). Brisco 1801 V. Davey 1224 v.lSjie 606,944 ■B.Hardy 1080 ■». London General Omnibus Co.... 615, 1190 Morgan's case 438 Estate, Jm re 2041 Patent, Jw re 1351 Moritz ■!>. Stephan 773, 1416 Moroney, iji 7'e 826 Morrin v. Morrin 2060, 2094 Morris, Inre, Bucknill r. Morris 1877 In re. Goober, Ex parte 140,1186 J» re, Salter ». Att.-Gen 2044 I'. GrifSths, Kaw, J« 7'e 493 <,-. HoweU 1449 V. London and Westminster Bank. . . 79 D.Lowe 559 Morrison, Ex parte, Gillespie, In re ... 151, 204 «. Great Eastern Ry 1123 Morritt, TJj re, OflScial Receiver, Ex parte 246, 248 Mortgage Insurance Corporation v. Inland Revenue Commissioners 215, 1558, 1559 Mortimer, In re, Griffiths v. Mortimer 2027 1). Wilson 1488 Morton, In goods of 2005 Moseley v. Victoria Rubber Co. ... 537, 649, 663, 1341, 1346 Moser, In re. Painter, Ex parte 120 Moss, .Efe^arie, Toward, J>i re 165 In re. Levy v. Sewill 1023, 1282 • 1). Bradburn 1469 ■». Malings 1347 Moss's Trusts, 7» re 1909,1915 Mouflet i;. Washburn 550 Mounsey I'. Rankin 472 Mount Morgan (West) Gold Mine, In re, West, Ex parte 349 Mouson V. Boehm 1854 Mowatt V. Castle Steel and Ironworks Co. 372, 733 4 B 36 TABLE OF CASES. Moxon 'w. London Tramways Co 55(! Moyers D. Soady 47,262 Muokalt V. Davis, Davis, Zh re 783 MufEett, In re, Jones v. Mason... 795, 2035, 2079 Mulcahy v. Kilmaothomas Guardians ... 17,879 Mulokem ■». Doerks 14:19 Mulleneisen ■». Coulson 553,1397 Multon, Hx parte, Multon, In re 182 Muuby n. Boss, Coalman, In re 2101 Munch's Application, In re 1847 Munday, In re, Allam, Ea; parte 246, 257 Mundy, lure, Shead, JE(c parte 207 Municipal Building Society v. Kent... 275, 1804 1). Eichards ... 277 .0. Smith 1079, 1263 Freehold Land Co. v. Metropo- litan and District Kya 1118 ■ Trust Co., In re 379, 380 Munns v. Burn, Crosby or Crosley, In re... 33, 187, 1143 and Longden, In re 42, 1483, 1757 Munro ■!). Watson 513 Munster 1). Cox 1330 V. Lamb 633 Bank, /to re, Dillon's Claim 455 Munton v. Truro (Lord) 627 MurfettD. Smith 1474, 1991, 2016 Murphy v. Cheevers 2088 r. Coffin 1677 ■». Davey ". 1234 ■B.Nolan 1423 ■B.Wilson 1194 Murray, In re, Dickson v. Murray 823, 1920 1). Havell, FlaveU, In re 1334, 1872 and Hegarty, Jra re 1939 V. Glasgow and South - Western Ey 297 ■B.Scott 268,279 V. Stephenson 1409 Murrell, ira re, Levering, ^asjparie 124 -B. Fysh 490,605,1106 Musgrave ^. Brooke, Brooke, ire re 2074 ■B. Stephens 259 Mutrie 1J. Binney 1432 Mutter V. Eastern and Midlands Ey. 355 Mutton, In re, Board of Trade, Ha; parte. .. 185, 205 In re, Mutton, Ex parte 182 Mutual Aid Permanent Benefit Building Society, In re, Anson, Ex parte 267 Life Assurance Society v. Langley 65, 1256, 1257, 1271, 1430, 1495, 1921 and Permanent Benefit Building Society, In re, James, Ex parte 1526 Myers v. Elliott 244 Myles ■«. Burton 931 Mysore Eeefs Gold Mining Co., litre 420 ■Mytton^B. Mytton 890 N. Nacupai Gold Mining Co., In re 416 Nadin -y. Bassett 758 Nally^). Eeg 300 Nanney «. Morgan 386 Naples, The 1697 Nares, In goods of 2008 Nash -B. Wooderson 1928 Nasmyth, The 1707,1722 Nassan, Ex parte, Home, In re 126 Nathan, /rare 1174,1578 Newman & Co., T» re 441 Nation, In re. Nation v. Hamilton 41, 532 National Arms and Ammunition Co., In re 425 Bank ■B. Canning 1448 BankuGourley 970 Building and Land Investment Co., In re, Clitheroe, Ex parte 431 Coffee Palace Co., In re, Panmure, Ex parte .382,1518 Provincial Bank of England v. Games 1277 • Provincial Bank of England v. Jackson 618, 1245, 1250, 1253 Natt, In re, Walker v. Gammage 795 Navan and Kingscourt Ey., In re, Dyas, Ex parte 1634, 1635 In re. Price, Ex parte... 1550 Naylor and Spendla's Contract, Jra re 496 Neal, In re, Weston v. Neal 1434 Neath Harbour Smelting and Boiling Works, -Ta re 362 and Bristol Steamship Co., In re... 415, 667 Neaves ■!). Spooner 538 Neck, In re. Broad, Ex pa/rte 127 Needham, In re 1919 Tra re, Eobinson ■». Needham ...2116 «. Bowers 1565 Negus ^. Jones 923 Neilsen u Neame 1674 Neilson ■b. Mossend Iron Co 1333 Nelson, Ex parte, Hookaday, In re 257 Inre 1761 ■B. Pastorino 1331, 1411, 1419 " ■B. Eobins, Robins, Jji re 1578 Nesbitt's Trusts, In re 1915 Nettlefold's Trusts, In re 1881 Never Despair, The 1444,1723 Nevill, J?tre 1160 New Chile Gold Mining Co., Jre re 384 City Constitutional Club Co., In re, Purssell, Exparte 424 University Club, J« re 1.563 TABLE OF CASES. 37 New Windsor (Mayor) v. Stovell 875 York Exchange, In re 412 Newbattle, The 1442, 1695 Newbegin, In re, Eggleton v. Newbegiu ... 1165, 1387 Newbould v. Bailward 1773 - 1-. Smith 746,1148 ■!). Steade 1445 Newfoundland Government v. Newfound- land By 65, 336 Newhaven Local Board v. Newhayen School Board 848,855 Newitt, Em parte, Mansel, In re 92 Newlands v. National Employers' Accident Association 408,1516 Newlove v. Shrewsbury 231 Newman v. Jones 1054 V. Newman 999, 1247, 1255, 1885 ■». Pinto 1857 Newport Slipway Dry Dock Co. xi. Paynter 1439 Newson v. Pender 680, 986 Newton's Patents, Jm re 1351 Newton «. Chapman, Chappie, In re 1780 D. Monkcom 852 v. Newton- 901 D. West Biding JJ 1057 Newtownards Gas Co., In re, Stephenson, Ex parte 430 NichoU ». Wheeler 662 NichoUs ■». Morgan 931 ■«. North Eastern By 288 and Nixey's Contract, ira re 135, 1614 Nichols to Nixey 135, 1614 Nicholson, Ex parte, Nicholson, In re 196 Ex parte, Btone, In re 85,608 Inre 1159,1902 Inre,'Sichaia(m,Eaiparte 196 In re, Qmiaa., Eai parte ,..1784 V. Booth 583,1064 v. Holborn Union 1372 V. Kirk, Kirk, In re 2025 ■». Wood 1441 NickoU, Ex parte, Walker, Inre 98,206 Nicol'scase 391 Nicol ■». Beaumont 674,1977 V. Nicol 910 Nicoll D. Beere 486 Nicols ■». Pitman 502,991 Nielsen ■». Wait 1676 Niobe, The 1713,1714 Nisbet«. M'Innes 1565 Nixon V. Cameron, Cameron, In re ... 777, 2114 ■ V. Sheldon, Sheldon, In re 34, 1817 V. Tynemonth Rural Sanitary Au- thority ;. 1313 ■». Verry 192 Noble ^). Ahier 687 Noel©. Noel- 907,909 NoUoth V. Simplified Permanent Building Society 273 Norden v. McBae, McEae, In re 803, 809, 1329 " Normal " Trade-mark, Inre 1849 Norman, In re, Bradwell, Ex parte 1760 ■». Bolt 102,1531 Normanton Gas Co. ■!). Pope 841 Norris, Ex parte, Sadler, In re 150 Inre, Allen v. Norris 1740, 1914, 1918 Inre, Reynolds, Ex parte 96 V. Catmur 1295 North Brazilian Sugar Factories, J» re ... 416, 440 British By. ■». Perth, Provost of ... 1544 Eastern Ry. «. Cairns 296 Eastern By. o. Sutton Overseers ... 514 London Freehold Land and House Co. «. Jacques 1104 Molton Mining Co., /» re 421 North-West Transportation Co. v. Beatty 359 North and South Western Junction By. v. Brentford Union 1373,1381 Northam Bridge Co. v. Beg 1390, 1805 Northcote v. Heinrich Bjom (Owners) ... 1652 Northen's Estate, In re. Salt v. Pym 2018 Northern Counties of England Fire Insu- rance Co, v. Whipp 1249, 1252 Northumberland (Duke) ■!/•. Bowman 987 Avenue Hotel Co., In re Fox's claim 478 In re, Sully's case 403, 1798 Norton «. Compton, Compton, In re 30, 38, 785 V. Fenwick 534 «. Johnstone 2122 Norwich Equitable Fire Insurance Co., In re, 439, 1008, 1009 In re, Brasnett's case 42, 427 In re. Miller's case 394,442 Norwich Town Close Estate, Inre , 311 Nottebohn iJ. Bichter 1664 Netting Hill, The 602, 1700 Nottingham, Ex parte. Tuff, Inre 144 Bank, Ex parte, Jenkinson, Inre 125 — — - Patent Brick and Tile Co. v. Butler 1931 Nouvion «. Freeman, Henderson, i» re ... 1039 Noyce, In te. Brown ■». Bigg 2051 Noyes «. Pollock 1265,1281,1283 Nugent's Trusts, In re 1152 Nugent ®. Nugent 2030 Numida, The 1728 Nutter V. Messageries Maritimes de France 1410 4 B 2 38 TABLE OF CASES. 0. O.J). In reiRohinson, Hx parte 150 O'Brien, JSm parte, Dublin and Wicklow Manure Co., In re 447 «. Gillman 808 ■». Tyssen 302,1465 O'Byme's Estate, J» re 628,1257 O'Connor, In goods of 1995 O'Donnell -!). O'DonneU 32,2020 O'Donoghue v. Vowles, Vowles, In re 812 O'Dwyer, In re 238 O'Grady ». Mercers' Hospital .; 515 O'Uagan, Ux parte 1775 O'Halloran 1). King, Bown, Jm ™ 937 O'Kelly 1). Harvey 1066 O'Loughlin v. Dwyer 1106, 1137 O'Malley v. BalmaUock Union 535 O'Neil V. City and County Finance Co. ... 260 O'Neill (Lord), /k re 1576 O'Rorke V. O'Eorke 919 Oakey «. Dalton 1401 1). Stretton 591 Oakfield, The 1681 Oastler, Ma parte, Friedlander, In re ... 98, 201 Obert D. Barrow, Douglas, J>i re 305 Ocean Iron Steamship Insurance Associa- tion d. Leslie 1020 Steamship Co. v. Anderson ... 1445, 1724 Octavia Stella, The 1296,1681 Oddy B. Hallett 1535 Odell V. Cormack 217, 1512 Odevaine ■!>. Odevaine 901 Official Receiver, Ux parte, Bear, In re ... 164 Ex parte. Bond, In re ... 104 Ex parte, Emery, In re 234 Ex parte, Gould, In re... 210 Ex parte, Holden, In re 160, 1896 Ex parte, Homiblow, In re 90 • Ex parte, WMs, In re ... 168 Ex pai)'te, Morritt, In re 246, 248 Ex parte, Parker, In re 194 — — Ex parte,'S,eeA, In re ... 202 -E5b ^orte, Eichards, J?i re 136 Ex parte, Eyley, In re 609 J?a!^arie, Stephenson, iji re 148 ^a!^arie,Taylor, J» re ... 89 Ex parte, White, J» re. . .1 36 , 1 96 JE5B^arte,WilkinBon, J»re 162 Ex parte,yiil\\axiis, In re 197 OfEor, Ex parte. Metropolitan (Brush) Electric Light and Power Co., /» re 761 Ogle v. Sherborne (Lord), Whorwood, In re 2036 Olathe Silver Mining Co., In re 414, 419 Old Mill Co. V. Dukinfield Local Board... 1470 Old Swan, &c. Benefit Building Society, In re, Evatt, Ex parte 278 Old's Trusts, In re, Pengelley «. Herbert... 2097 Oldenberg (Prince), In goods of 2011 Oldham B. Stringer 1243 Oliphant v. Gerard, Gerard (Lord), In re... 948 Olive, In re, Olive v. Westerman 791, 1874 OUey V. Fisher 624, 1796 Olpherts, Ex parte, Bann Navigation Act, In re 1770 Onslow, i» re, Plowden ■». Gayford 923 Onslow's case 4:44 Openshaw «. Evans ; 1081 Oppenheim v. Oppenheim 909 Oppert V. Beaumont 35, 1492 Oram, Ex parte, Watson, In re 110 Orange to Wright 1930 Orient Steam Navigation Co. v. Ocean Marine Insurance Co 55, 533, 1426 Oriental Bank Corporation, hi re ...28, 410, 428, 1494 In re. The Crown, Ex parte... 321, 430, 595 In re, GuUlemin, Ex parte... 436 In re, MacDow- aU's Case... 442, 1188 ■!). Kicher 335 Orme, In re, Evans v. Maxwell 12, 785 Ormerod i). Bleasdale 38 Ormston, In re, Goldring v. Lancaster 525 Orsmond, Zre re, Drury «. Orsmond 792 Orwell, The 1725 Osborne v. London and North Western Ey. 1294 1). Milman 1536,1793 • ■!). Morgan 320 Otto D. Steel 1339 Otway, Ex parte, Otway, In re 105, 607, 902 r. Otway 898,899 Outlay Assurance Society, In re 853 Over-Darwen (Mayor) v. Lancashire JJ. 1862, 1983 Ovey, In re, Broadbent v. Barrow 804, 309, 2115 Owen, Ex parte, Owen, In re 105, 132T In re, Vayton, Ex parte 201,1753 V. Edwards, Edwards, In re 619, 1491 v. Morgan, Morgan, In re 40, 1505 1). Eobei-ts 270 Owens V. Shield 7» College V. Chorltou-upon-Medlock Overseers 1376 Owtram, In re, Marshall v. Ed^lston 185 Oxford Benefit Building Society, In re ... 862 Oxley ?i. Scarth, Pearson, In re 1873. TABLE OF CASES. 39 p. Pacific, The 1683, 1689 Packard v. CoUings 720,722 Paddington BuriaJ Board v. Inland Revenue Commissioners 698, 1567 Page, Xh re, Maokay, Ex parte 123 17. Eastern and Midlands By 364 V. Morgan 472, 1580 r. Slade 1337 P^et «. MarshaU 624,1231 Paget's Settled Estates, In re 1622, 2075 Paine I). Matthews 225 Paine's Trusts, In re 1915, 1917 Painter, Ex parte, Moser, In re 120 Palatine Estate Charity, Jm re 810 Palermo, The 647, 1702, 1724 Paley «. Gamett 1196 PalinuTUS, The 1683 Palliser «. Gumey 926 Palmer, Ex parte. Palmer, In re 190 i« ?•«, Skipper «. Skipper 1472 r. Hummerston 635 1). Johnson 615, 617, 1927 V. Mallet 487,1336 V. Palmer 745,2064 Palmer's Trade Mark, 7m re 1837, 1847 Palomares, The 546, 1727 Pandorf 17. Hamilton 615 Panmure, .Esjjarte, National Cofiee Palace Co., In re 382, 1518 Pape«. Pape 934 Paris ajid New York Telegraph Co. ■». Penzance Union. 1375 Parish v. Hudson, Lucas, In re 44 17. Poole 533,1242 Parisian, The 1725 Park, In re, Koster, Ex parte 608 Parkdale Corporation 17. West 326 Parke, Inre 234, 256, 1825 Parker, ^3! ^ffirte, Chapman, /?j re 143 Inre 1769 jTra re, Bearing ■». Brooks 1454,2015 In re, OflBcial Eeceiver, Ex parte 194 and Beech, Z» re 1947 !7. Blenkhom 1773 (7. Inge 862 17. Winder, Wilson, Jra re 2027 Parker's Will, In re 1900 Parkers, In re, Sheppard, ExpaHe 147 In re, Turquand, Ex parte ... 122, 126, 232 Parkin «. Cresswell, Cresswell, In re 2045 Parkinson, Z» re 593,1749 V. Potter 1024, 1085, 1370 Pamacotti7. Passmore 818 Pamelli7. Mort 526, 562, 1348 17. Stedman 826 Parrott, In re, Parrott i>. Parrott ... 2069, 2071 Parrott, In re, Walter v. Parrott 1613, 2069 Parry and Daggs, In re 2048, 2074 Parsons, Ex parte, Townsend, In re ... 225, 237 17. Cotterell 486 17. Hargreaves 249,252 Partington, In re, Partington 17. Allen 1748, 1874, 1876, 1878 17. Hawthorne 727,1513 Partridge, Ex parte 1206 17. Mallandaine 1567 Pascoe 17. Puleston 721 Pass, In re 1744 Patent Invert Sugar Company, In re 375 Paterson, Ex parte, Rathbone, Inre 119 Patience, In re, Patience 17. Main 1028 Paton 17. Carter 1098 Patroclus, The 1683 Patten i7. Wood 1187 Patton 17. Employers' Liability Assurance Co 997 Paull, /rere 1762 Paxton 17. Macreight, Macreight, In re... 59, 1028 Payne, Ex parte, Coton, In re 239 — — Ex parte, Bincl^T:, In re 168 In re, Castle Mail Packets Co., Ex parte 183, 188, 201 V. Esdaile 701, 1153 i>. Tanner 790 Payne's Settlement, In re, Kibble 17. Payne 1921 Payton, Ex parte, Owen, In re 201, 1753 Peace, Ex parte, Williams, In re 247 and Ellis, J» re 1773 and Waller, /» re 770,931 Peacock i7. Colling 1898, 1899, 1911 Peake, In re, Harrison, Ex parte 159, 842 17. Finchley Local Board 874 Pearce, In re. Board of Trade, Ex parte 92, 194 la re, Crosthwaite, Ex parte... 157, 1641 J?i re, McLean 17. Smith 810 17. Foster 648,1188 Peard r. Morton, Luddy, Inre 2044 Pearson, In re, Oxley v. Scarth 1873 In re. West Cannock Colliery Co., Ex parte 156 17. Att.-Gen., Perton, J» re 744 . 17. Pearson 555, 615, 752, 801, 845 17. Ripley 54,531 Pease 17. Pattinson 308 Peat 17. Broughton, Broughton, i» I'e... 191, 2077 17. Fowler 351, 830 17. Nicholson 1274 Peckham Tramways Co., Inre 417 Pedder 17. Hunt 1151,2059 Peek 17. Derry 344,345,350,824 17. Savory, Harvey, In re 2081 Peel, ire re 1160,1902 Pegram 17. Dixon 1194 40 TABLE OF CASES. Pellew, In re, Meager, Ex parte 607, 944 Pelly, Ex parte, Anglo-French Co-operative Society, In re 431 Pengelley v. Herbert, Old's Trusts, In re... 2097 Pennington, Jre re, Goo^ec, Ex parte 826 u. Payne, Wilson, i» re 781 Penny «. Hanson 1925 People's Caf6 Co., Jm re 378 Pepper's Trusts, J?t re 954 Pepper, J» re. Pepper 1). Pepper ... 1167,1484 Percival, J» re, Boote i;. Button 1996 1). Dunn 61,1465 ... Pedley 551 Percy v. Percy, Percy, In re 2055 Perkins f. Dangerfield 1474 ■!). Gingell 1648,1972 Perratt v. London Scottisli Permanent Benefit BuUding Society 274 Perriam, In re, Perriam v. Perriam 1936 Perry, Ex parte 510 • I). Barnett 1523 i;. Spencer, Harrison, Z» re 493 Perton, j?ra re, Pearson D. Att.-Gen 744 Pescod D. Pescod 52 Peshawul, The 1431,1723 Peter «. Thomas-Peter 1404 Peterborough Corporation v. Wilsthorpe Overseers 26,29 Peters i;. Tilly 731,1434 Pethybridge i). Burrow, Shield, In re 1869 Petty u Daniel 68,1482 Pfeifier ■!). Midland Ky 1474 Phelan u Slattery 2021 1). Tedcastle 469 Phelips v. Hadham District Board 7, 1466, 1979 Phelps D. Comber 129,1587 i;. Upton Snodsbury Highway Board 516 Phelps' Settlement Trusts, 7« ?'e 1916 Philips D. Beale 1467 Phillips, Exparte, Harvey, In re 179 Ex parte, Phillips, In re 106, 205 Ex parte, Eodway, In re 199, 200 Ex parte, Watson, In re 80, 786 In re 967 In re, Bath, Ex parte 141, 272 In re, PhUlips, Ex parte 106, 205 ■». Andrews 1322 _ 1-. GofE 1592 ■!). Highland Ey 1721 I'.Homfray 19 V. Phillips 925, 1820, 1867, 2054 Phillipson I). Emanuel.. 1409 Philp, Ex parte, United Stock Exchange, In re 416 Phippa u. Jackson 990,1089 Piokard, In re, Turner v. Nicholson 1162, 1323 V. Wheater, Eobinson, In re 1487, 1488 Picker v. London and County Banking Co. 1304 Pickering, In re, Pickering v. Pickering 651, 1331 Pidler i>. Berry 818 Pierson «. BJautsford Estates Co 1789 Pietermaritzburg (Mayor) v. Natal Land Co 330,1803,1811 Pike D. Ongley 753,1520 Pilley «. Eobinson 1406 Pilling's Trusts, Jji re 1402,1904 Pilots. Craze 1513 Pine ■!). Barnes 1055 Pinnas, The 1706 Pitman v. Francis 1747 Pitt's Estate, In re. Lacy v. Stone 306, 2121 Pitt U.White 1322 Planet, The 1726 Plater v. Burnley (Mayor) 1233 Piatt, In re 1158 ■B.Mendel 1267,1272 Player, In re, Harvey, Ex parte 167 Plimmer v, Wellington (Mayor) 336 Plowden, Ex parte, Hutchinson, In re 155, 772 1). Gayford, Onslow, A re 923 Plowright D. Lambert 1886 Plumb «. Craker 556 Plumstead Board of Works v. Spackman... 1803 Pochin V. Smith 834 Pococku. Gilham 1092 Pointin 1). Porrier 289 Pointon ^>. Hill 1924 Pollard, ire re 1752 Pollen Trustees, Ex parte, Davis, In re 159, 1094 PoUexfen ». Sibson 1330 Pollock, In re. Pollock v. Worrall . . . 2087, 2088 «. Lands Improvement Co. ... 669,1809 Pomero ■». Pomero 895 Pommery ■!). Apthorpe 1570 Ponsford D. Abbott 186,1081 Ponsonbyj;. Ponsonby 908 Pontida, The 1715 Pontifexi;. Foord 1459 Pool's case , 445 Pool V. Tunnel Mining Co 446 Poole, In re, Poole v. Poole 1445 Poole's Settled Estate, In re 1626 Pooley, In re 1780,2003 Pooley's Trustee ii.Whetham, 34,93,614,1442,1737 Pope, 7» re 771,1453 Poppleton, Exparte, Thomas, J» re 353 Porrett 17. White 1426 Portal and Lamb, J» re 2087 Porteous D. Eeynar 328 Porter r. Grant 807,812 ■». Porter 1167,1322 Portman v. Home Hospitals Association . . . 1087 Portsmouth (Mayor) v. Smith 869 Postlethwaite, i» re. Ledger, ^iB ^arie ... 169 In re, Postlethwaite v. Eiok- man 649,1886 TABLE OF CASES. 41 I'Qstmaster-General v. Green ... 736, 1389, 1816 Potter, In re, Potter v. Potter 2095 «. Dudeney 495,2108 Potteries, Shrewsbury, and North Wales Co., Tare 1319 Poulter V. Shackel, Briant, In re 786, 918 fouitoxi, JEa; parte 505 Pounder, In re, Williams v. Pounder 2059 Pountain, In re 1166 Powell V. Apollo Candle Co 318 «. Cobb 1469 ■». Hulkes, Hulkes, Jji re 792 • ■». Nevitt 461 Power V. Barrett 1931 r. Power 1139,1748 Powers, In re, Lindsell v. Phillips ... 804, 1148, 1152 Prater, In re, Desinge v. Beare 2069 Pratt, jEfe ^flirte, Pratt, In re 101 Pratt's Trusts, ira re 1905 Preeces. Gilling 230 Prentice D. Tabor 1997 Preston «. Btherington 610,612 r. Luek 468,1797 (Mayor) v. Fulwood Local Board 686, 1502, 1978 Previdi^. Gatti 1192 Provost V. Compagnie de FiTes-LUle 328 Price, Em parte-, Navan and Kingscourt B,y.,In re 1550 In re 1164 In re, Foiemaa, JEx parte 119 i» re, Leighton ^). Price 1627 In re, Stafford v. Stafford 939, 1992 i» re, Williams 1). Jenkins 811 In goods of 1993 «. "Al" Ships' Small Damage In- surance Co 1015 V. Bala and Festiniog Ey 987, 1542 ^r.Bradley 819 I.Livingstone 1673 1). Neault 323 t. Price 1155 ■W.Shaw 1204 B.Stafford 939,1992 D. Wilkins 489,1595 Price's Patent Candle Co., In re 1840, 1841, 1849 Priest r. Archer 818 Priestman 17. Thomas 725,2012 Prim ». Smith 1204 Princess, The 1698 Pringle, Hm parte, Bombay Civil Fund Act, Inre 964 Prinz Heinrich, The 1708 Prior «. Bagster 1336 Pritchard v. Bangor (Mayor) 508 v. Pritchard 553,1474 Proctor V. Bennis 739, 1340, 1344 r. Smiles 663,1734 Proctor u. Webster 634 Progressive Investment and Building So- ciety, In re, Corbold, Ua; parte 279, 433 Provincial Bank v. Cussen 1532 Fijnne, Inre 942,988 Pryor, In re. Board of Trade, Em parte ... 199 — — w. Pryor 884,908 Pugh, In re, Lewis v. Pritchard 543 Pulbrooki). Ashby 229 PuUau V. Eoughfort Bleaching Co 681 Punch «. Boyd 639 Purcell, In re 1641, 1644 i>. Henderson 1359 v. Sheehy 952 Purser v. Worthing Local Board 871 Purssell, Ux parte, New City Constitu- tional Club Co., ira re 424 Purvis, In re, Eooke, Ux: parte 137 Pyatt, In re, Eogers, Ex parte ... 135, 629, 935 Pybus, Jrere 1760 Pymani). Burt 1659,1668 Q. Quartz Hill Consolidated Gold Mining Co. V. Eyre 1170 Queade's Trusts, Inre 703, 947 Queale's Estate, Inre 781 Queensland Mercantile Agency Co., In re . 418 Quilligan v. Limerick Market Trustees 1184 Quinlane ■». Murnane 1475 Q^rnXLU, Ex parte, 'Sick6\soTi, Inre 1784 E. Eackstraw's Trusts, Inre 1904 Eailway Sleepers Supply Co., Inre ... 407, 1825 and Electric Appliances Co., In re 465,620 Eainbow, The 1654,1655 Eainford ii. Knowles, Knowles, Inre 2032 Eaisby, The ..'. 538, 1708, 1728 Ealph Creyke, The 1690 Ealph's Trade-mark, In re 1847, 1853 Eamsay's case 419 EamskUl v. Edwards 186, 1401, 1530, 1879 Eandall ■». Lithgow 73 Eandell, In re. Hood v. Eandell 40 Jra re, Eandell «. Dixon 308 Eanelagh's (Lord) Will, In re 1868 Kankart, Ex parte, Blakeway, Inre ... 132, 201 Eankin, Ex parte, Eankin, im re 183, 203 Eaphael v. Burt 1585 Eapley «. Taylor 1095 42 TABLE OF CASES. Rasbotham v. Shropshire Union Eys. and Canal Co 665 Rathbone, In re, Paterson, Use parte 119 Eathmines Drainage Act, In re 1638 Eavenscroft v. Workman, Arnold, In re 307, 2121 Raw, 7» re, Morris «!. Griffiths 493 Eawlings, JEa; parte, Cleaver, In re 239, 249, 251 Hw parte, Davis, In re 127, 232 .Ex parte, FoTstei, In re 166 V. Emmerson, Emmerson, In re 462, 543, 2014 Eawnsley v. Lancashire and Yorkshire Ey. 560 Eawstone v. Preston Corporation 647 Bay's Settled Estates, Iti re 1162, 1630 Ray D. Wallis 1192 Eayner's Trustees and Greenaway, In re... 1884 Eead, Eai parte 687 V. Anderson 834, 1522 V. Brown 5, 1203 Eeaddy ■». Pendergast 1737 Eeading v. London School Board 1040 Eeal and Personal Advance Co. v. Clears. . . 243 Eeay i>. Gateshead (Mayor) 858 Eedfield v. Wickham (Corporation) 327 Bedhead «;. Westwood 232 Beece v. Strousberg 1095, 1263 Eeed, Ex parte. Reed, In re... 169, 170, 187, 207 In re 2039 In re, Official Eeceiver, Ex parte . . . 202 In re, Eeed, Ex parte ... 169, 170, 187, 207 ■ v. O'Meara 1829 «. Winn, Winn, In re 920, 1002 Eees, In re, Bees v. Bees 1775 Eeeve, Ex parte, Lowestoft (Manor of), Inre 596, 1126 V. Berridge 1930 Beeves ■». Barlow 225, 264 Eegalia, The 1651 Beg. ■!>. Adams 581 V. Andover Justices 1057 u Ashwell 575 -0. Ayley 566 «. Bangor (Mayor) 507 0. Banks 576 «. Barnet Union 977 V. Beckley , 1063 V. Beddlington Overseers 1378 0. Berwick Assessment Committee ... 1371 v. Biron 1175 ij. Bishop 1048 1). Bloomsbury County Court Judge ... 719 V. Brackenridge 587, 732, 1062, 1066 t). Bredin 569 i;. Brindley 840 •». Brittleton 590 V. Brompton County Court Judge 549, 608 ». Bnckmaster 575 ». Burgess 573 D.Burns 585, .592 Beg. 'c. n, v. ■», ■ «, Bumup 852 Burton 572 Bushell 593,1365 Butt 573 Carroll 1540 Carter 576 Cattley 830 Central Criminal Court (Justices) 23, 577, 587, 1174 Chamwood Forest Ey. ... 390, 737, l]7o Cheshire Justices 1984 Chittenden 1976 Christopherson 696, 1.S73 Cinque Ports Justice 1924 City of London Court Judge 554, 556. 1648, 1721 Clarence 582 Clark 1925 Coles 584 Coley 567 Cooban 847, 848 Cook 835 Copping Syke Overseers 1381 Cork Justices 1068 Cox 756,1049,1178,1734 Crawford 1924 Crewkerne Justices 1051 Cronmire 568 Croydon County Court Judge. . . 138, 548 Croydon and Norwood Tramways Co 1862 Cumberland Justices 1062 Cuming, Hall, ^aj ^flsrte 58 Curtis 57>l De Portugal 814 DeWintou 212 Deasy 586 Dee 580 D'Eyncourt 1065 Denbighshire Justices 1381 Dibbin 1367 Dobbins 1056 Doherty 579,592 Doutre 211,323 Dover (Eecorder) 1975 Downing 515 Dublin (Eecorder) 1048 Dudley 1 579 Dykes 565,941 Eardley 583, 732, 1064, 1177 East and West India Dock Co 1222 Edwards 616, 1063, 1122 Essex 266, 1119 Essex County Court Judge ... 556, 1022 Essex Justices ....- 1979 Farrant 1062 Felbermann 641 Finkelstein 574, 815 Flannagan 580,588 TABLE OF CASES. 43 Eeg. v. ■ V. V. V. V. V. ■». V. V. v. Fla-vell 213 Fletcher 213, 1063 Flowers 575 Foote 2i Fox 723 Garrett 1052 Garstang Union 1386 Garvey 723 General Assessment Sessions 1222 General Medical Council 1206 Gibson 591 Gilham 1989 Great Western Ev 1551 Great Western Ey. Directors 506 Greenwich Board of Works 1218 Greenwich County Court Judge . . . 556 Greenwich County Court Registrar 193, 555, 557 Griffiths 1068 Gunnell 590 Hadfield 584 Hagbourne (Vicar) 694 HaU 214 Hands 574 Hanley (Eecorfer) 840 Hannam 872 Haslehurst 1367, 1368 Hafts 588 Hazzlewood 571 Headlam 1379 Henkers 581 Hollis 575 Hohues 572 Holroyd 552 Income Tax Commissionei'S. . . 1174, 1477, 1573 Ingham 1561 Inland Revenue Commissionei'S ... 1174, 1578 Inland Eevenue Commissioners, Empire Theatre, M ir 1046 Jefferson 1379 Jessop 578 Johnson 580 Johnston 1656 Jones 571,588 Jordan..: 460, 550, 559 Juby 187 Judd 640 Kain 592 Kay 566 Kent Inhabitants 863 Kettle 559 King 1048,1177 Kirkdale Justices 1049 Labouchere 640 Lambeth County Court Judge 462, 550, 719 Langriville Overseers 1381 Latimer 582 Lavaudier 814 Lee 212 Leeds County Court Eegistrar 555 Leresche 934 Lincolnshire County Court Judge. . . 771, 1456 Liverpool Justices 1051 Liverpool (Mayor) .561 Llewellyn 863- Lloyd 584 Local Government Board 1975 London (Mayor) ... 641, 941, 1068, 1071, 1176 London School Board 1373 London and North Western Ey. . . . 593 Long 854 Lordsmere Inhabitants 1985 McDonald 576 Mace 581 Mallory 591 Mann 589 Manning 566 Market Bosworth Justices 1051 Marsham 1176,1221 Marylebone County Court Judge . . . 551 Marylebone Guardians 1381 Masters 592 Midland Ey 1551 Millhouse 592 Miskin Higher Justices 1052 Merthyr Tydvil Justices 1050 Metropolitan Ey 1816 Montagu 1050 Moore 1595 Newcastle-upon-Tyne Justices 1053 Nillins 814 Northampton County Court Judge 830 Norton 588, 722 O'Connell 1049 Oldham Justices 934 Owen 582 Packer 581 Peters 187, 592 Phillimore 1175 Pierce 572 Pilling 1175 Pirehill Justices 1178 North Justices 1177, 1810 Poole (Mayor) 587, 878, 1984 Poplar Union 1222 Portugal 569 Poulter 1118,1119 Powell 513, 571 Preston Guardians 1386 Price ; 505, 564, 578 Pruntey "89 Ramsay 640,641 Eandell 570 44 TABLE OF CASES. Eeg. V. Rawlins 1367 V. Eedditch Justices 1051 -y. Eegan 591 V. Registrar of Joint-Stock Companies 446, 1174, 1177 D. Eiel 323 c. Riley 580,591 ■y. Ritson 577 u. Robinson '.. 506 i;. Robson 567 ■!;. Rogers 548 u Rose 578 i;. Rudge 24 V. St. George's Vestry 695, 1208 D. St. Mary, Bermoudsey 1223 V. ■ Islington 1222,1382 ^ u St. Marylebone Vestry 60 - — 11. St. Matthew's, Bethnal Green 695 D. St. Olave's Union 1381 'W. Sampson 570 1). Sandoval 1959 •■». Sern6 579 u Sheffield (Recorder) 870 V. Sheil 1176, 1213 V. Shepley 1369 V. Shingler 214 V. Shropshire County Court Judge 548, 1061 ». Shurmer 588 -.v. Sibly 1317, 1369 'B.Simpson 566 ■». Slade 18 o. Smith 589, 1123,1370 V. South Staffordshire Waterworks Co. 1377 V. Southampton County 1985, 1986 V. Southend County Court Judge . . . 1721 i>. Sparks ! 1051 V. Staffordshire County Court Judge 550 V. (Justices) 1177,1810 V. Staines Local Board 593 U.Stephens 568 V. Stephenson 505, 564, 578 r. Stepney Union 1384 V. Stonor 528, 549, 608 D. Stroulger 587, 722 ». Stubbs 593 -o. Sullivan 590 V. Surrey Justices 299,1047 V. Sussex County Court Judge 110 D.Wakefield 1051 ^ !). Wakefield Guardians 1386 «. Wakefield (Mayor) 878,1985 V. Wandsworth Board of Works 1217 D.Ward 586 1). Warr 1989 ■!). Wealand 581 V. Webster 582 V. Weil 23,814 D. Wellard 583 r. Wells Water Company 1962 Reg. V. West Bromwioh School Board 1374 V. West Riding Justices 1053, 1057 V. Westmoreland County Court Judge 547, 1538 V. Wheatley 528, 862 i'.Whelan 1540 „. White 1317,1369 f. Whitfield 1168 «. Wigan Corporation 512 0. Williams 337, 1300 -•. Wilton (Mayor) 509 '-. Wolverhampton (Recorder) 1072 (\ Woodfield 590,834 V. Wynn 576 V. Tonbridge Overseers 697, 1804 (,-. Tooke 1062 0. Townshend 225,569 i: Trinity House Corporation 1681 V. Truro (Lord) 627 f. TumbuU 1070,1536 V. Tynemouth Justices 1070, 1536 ■». York (Archbishop) 687 r. Yorkshire Justices, Gill, Mas jiayie... 1176 Eeichel v. Oxford (Bishop) 690 Ueid, JEo! parte 1176 Ex parte, Gillespie, In re 152, 200 In goods of 2012 13. Explosives Company 441,1188 (. Hoare 956 11. London and Staffordshire Fire Insu- rance Company 349 V. Reid 918,924,1807 Eenpor, The 1704,1707 Eepublic of Peru v. Dreyfus ..1024, 1412 r. Peruvian Guano Com- pany 1464 Eevell, ^»i)arte, Tollemache, Z»w ... 149,746 Eevill, In re, Leigh «. Eumney 806 Eew V. Payne 1582 Reynolds, Ex parte, Barnett, In re. . .86, 193, 196 Ex parte,'SoTns, In re 96 • V. Coleman 1413,1416 Rhoades, In re, Lane r. Rhoades 2073 Rhodes, In re, Heyworth, Ex parte 114 In re, Rhodes v. Rhodes 742 Will, Zjsre 1430 r. Dawson 189,1042,1443 V. Jenkins, Mansel, In re 1896 ■!!. Pateley Bridge Union 1378 I'. Rhodes, Rhodes, In re 742 r. Sugden, Wadsworth, In re 1788, 1789, 1790 Rhondda, The 1689 Rhosina, The 517, 1297, 1301, 1517,1718 Rice, In re 750 V. Howard 755 Richards, Ex parte, Wallace, In re 112, 1391 In re, Maxch., Ex parte 204 In re. Official Receiver, Ex parte 136 TABLE OF CASES. 45 Richards, In ir, Shenstone v. Brook 1870 In re, Williams v. Gorvin 2055 r. Banks .'. 1046, 1561 — — V. Jenkins 735, 774, 1041 ■». Kessiok 853 r. West Middlesex Waterworks Co 1199, 1968 Richardson, lure, Gould, Ex parte 88, 141 ■ In, re, Shillito v. Hobscn 1243 1% re, Shuldham v. Royal National Lifeboat Institu- tion , 306, 1868 11. Brown 856 u. Feary 1321 iJ. Harrison 2026,2055,2103 r. Pratt 97 1). Webb 767 Richardson's Will, In re 308 RiddeU, Jm re, Strathmore (Earl), Ex parte 109 «. Errington 936, 1627 Biddeough, In re, Vaughan, Ex parte... \%^, 165 Ridge, In re, Hellard v. Moody 1632 Ridgway, Ex parte, Ridgway, In re 167 InrejtHem, Ex parte 146 r. Ward 74,1987 Rieli). Reg 323 Bigborgs Minde, The 1679, 1680 Riggi!. Hughes, Smith, In re 43, 2015, 2016 Riley to Streatfield, 2» re 1948 Ringdove, The 1653 RioTinto, The 1651,1721 Ripley I'. Paper Bottle Co 398 1'. Sawyer 982,1507 Ripon,The 1680,1691 Rlsoluto, The 1699 River Lagan, The 1698 River Plate Fresh Meat Qo.,lnre 380 Rivett-Camac's Will, Jm re 1631, 1825 Riviere's Trade-mark, In re ... 1835, 1852, 1853 Robarts, Ex pa/rte, Gillespie, In re 143, 223 Robert Dickinson, The 1651 Roberts, Ex parte 300 • In re, D&niel, Ex panie 164 In re, Evans v. Roberts 229,472, 1588 In re, KifE v. Roberts... 28, 1398, 2065 iji re, Tarleton ■!;. Bruton 2049 ■». Barnard 1522 i>. Falmouth Sanitary Authority. . . 1594 ■!;. Oppeuheim 650,652 K. Roberts 228,237,240,241,255 Robertson, Jrej-e 205,1774 v.Broadbent 2084,2086 V. Richardson 191 Robey r. Snaf ell Mining Co 1416 Robins, In re, Nelson v. Robins 1578 Robinson, Exparte, 0. D., In re 150 In re 65, 903, 1164 In re, Piokard v. Wheater. ..1487, 1488 Robinson v. Barton Local Board 852, 858 ■!). Dand 691 ». Gandy, Garnett, J« re 949 v. Milne 265, 1078, 1225 D. Needham, Needham, /» re ... 2116 O.Robinson 904 1}. Trevor 270, 1247 V. Tucker 25, 224, 1045, 1474 Robinsons, The 1720 Robson, Exparte 511 r. Owner 6f the Kate 1720 t". Worswick, Worswick, im re 647 Rochdale Building Society v. Rochdale (Mayor) , 872, 1070 Rodocanaohi 1). Milburn 1666, 1672 Rod way, /?i re, Phillips, ^;Ki)»rfe 199,200 Roe V. Birch, Birch, In re 788, 1073 1: Mutual Loan Fund ... 188, 244, 260, 736 Rogers, Exparte, Pyatt, In re ... 135, 629, 935 Ex jjarte, B.ogeTS, In re 170,172 Jw re. Board of Trade, -Efc^arie ... 92 V. Drury 488 RoUand D. Cassidy 322 Bollason, In re, RoUason r. Bollason... 766, 1358 RoUs II. London School Board 1592 ■B.Miller 1086 Rona, The 1652 Ronan 1). Midland Ry 296 Rooke, Exparte, Purvis, J« re 137 Rooney, Exparte, Tallerman, In re 151 Roots t'. Beaumont 864 r. Williamson 386 Koper, In re, Roper v. Doncaster 929 Rose of England, The 1692 Roselle v. Buchanan 636, 1438 Rosetta, The 1685,1686 Rosher, In re, Rosher v. Rosher 616, 2073 Rosing's Application, In re 1844, 1848 Ross, Exparte, British Empire Match Co., In re 382 Exparte, Cripps, In re 113, 158 D. Army and Navy Hotel Co 370 llothbury. The 1668 Rotherham (Mayor) r. Fullerton 854 v. Rotherham 2061 Alum and Chemical Co., In re 403, 475 Rous v. Jackson 2102 Routh, Ex parte, Whitehead, In re 474 Rowe, ire re, Rowe r. Smith 978 ■B.Kelly ^426 i). London School Board 1799 V. Smith, Rowe, In re 978 Rowlands, In re, Board of T:ia.As,.Ex. parte 94 ■&. DeVecchi 745,1135 ■B. Williams 1789 Rownson, In re, Field ^•. White 783, 788 Royal Bristol Permanent Building Society B. Bomash l'^99 46 TABLE OF CASES. Eoyal Exchange Shipping Co. v. Dixon ... 1670 Liver Friendly Society, In re 831 Mail Steam Packet Co. i>. English Bank of Kio de Janeiro 1715 Eudland 1). Sunderland (Mayor) 857 Ruffle V. Medlock, Medlock, In re 2123 Rushbrooke r. Farley 14-24 Russell, i'x ^arfe, Elderton, J/j re 208 Inri! 1751,175.3,2034 1)1 ro, Guest, Ex ^arte 109,613 In re, Russell v. Shoolbred... 1106, 1530 f. Town and County Bank 1571 ?'. Waterford and Limerick Ry. ... 729 V. Watts 675, 1955 Rust V. Victoria Graving Dock Co 601 Ruthin Ey., In re, Hughes' Trustees, JSa; parte 1319 Ryan, J« re 192,961 V. Fraser 532 and Cavanagh, In re 779, 1945 Ryder, X?HT 1132,1162 Eye t-. Hawkes 1422 Ryley, In re, Official Receiver, JCr parte... 609 In re, Stewart, Ex parte 168 Rymer v. De Eosaz, De Eosaz, In re 535 V. Harpley, Bourne, In re 2046 EymUl u. Wandsworth District Board 72 S., Ill re. Bank of Ireland, Ex parte... 142, 1001 S. (falsely called B.) «. B 887 Sachs 1). Speilman 1439 Sadler, J» re, Norris, -E'a!^a/-('p 150 St. Agnes, In re 693 St. Alphege (Parson), Jw re 1127 . London Wall, /» re 313 St. Andrews Election 718 St. Andrew's Hospital v. Shearsmith 1566 St. Andries, The 1687 St. Botolph Estates, Jra re 312 St. Croix u Morris 482, 838 St. Gabriel, Fenohurch ti. Williams 1375 St. George's Estate, In re 1457 St. George r. St. George 659,799 St. Giles, Camberwell r. Greenwich Board of Works 1219 1). Hunt 1220 St. Helen's (Mayor) t!. Kirkham 866 Corporation v, St. Helen's Colliery Co 871 St. John the Evangelist, In re 313 St. John's, Hampstead, v. Cotton 1220 ■«. Hoopel 1217 St. Lawrence (Overseers) v. Kent JJ... 545, 1072^ St. Leonard, Shoreditch, Schools, In re . . . 314 St. Leonard's Vestry v. Holmes 1217 St. Mary's, Aldermanbury, In re 313 St. Mary, Newington-, v. South London I'ish Market Co 1^1* St. Matthew's, Bethnal Green, v. Perkins... 695 St. Pancras Guardians v. Norwich Guar- dians 1382 ISt. Saviour's Rectory (Trustees) and Oyler, Inre 700 St. Stephen's, Coleman Street, In re 313 Salaman, -Et; ^aric, Salaman, In re 181, 207 Salisbury (Bishop) «. Ottley 688 (Lord) u. Nugent 2014 Salkeld, In re, Good; Ex parte 1 20 Salm Kyrburg D. Posnanski 66, 1492 Salmon, In re, Gould, Ex parte ;.... 16.58 ■». Duncombe 332,1803 Salt «. Edgar 1 1273 ■!;. Pym, Northen's Estate, In re 2018 Salter r. Att.-Gen., Morris, In re 2044 Salting, Ex parte, Stratton, In r&. 146 Sampson and Wall, /» re 968 Sandars, In re, Serjeant, Ex parte 86, 206, 1109 Sandeman v. Scottish Property Society . . . 1606 Sanders, In re, Serjeant, Ex parte 86, 206, 1109 /ft re, Whinney, iSc^arfe 109,443 v. Anderson 1417 !'. Bromley, Bromley, In re 398 U.Davis 1238 c. Maclean 1581 (..Peek 1407 /. Teape 18, 1300, 1864 Sanderson, In re, Wright v. Sanderson 39, 2001 V. Berwick-upon-Tweed (Mayor) 1084 Sandford v. Clarke 1076, 1090, 1101, 1295 Sandgate Local Board v. Leney 684 t. Pledge 873,1071 Sandwell, /ra re, Zerfass, .fin^arte 121 Sangster 1). Cochrane 271 •'Sanitas" Trade-mark, J» re 1839,1849 Sanitas Co. r. Condy 1856 Sara, The 1653 Sarum (Bishop of). In re 1905 Satellite, The 1720 Saul ■!;. Pattinson 1267,1881 r. Wigton Sanitary Authority 872 Saunders r. Brading Harbour Improvement Co 1796 V. Dence 1588 V. McConnell, MoConneU, In re 39 V. Pawley 1471, 1496 r. Pitfield 833 Saiuiders- Davies, In re, Saunders- Davies r. Saunders-Davies 2119 Savage v. Payne, Stamford (Earl), In re 1427 Savile «. Couper 1915 V. Yeatman, Drax, In re 2036 Saville, ^aj^arte, Saville, Z?i ?'e Ill In re, Beyfus or Saville, Eir paiie 111 Sawyer r. Sawyer 1469,1887 and Baring's Contract, 7?i re 1944 TABLE OF CASES. 47 Sa,yeT, Sx parte, MaoBel, In re 92 In re, McClellan v. Clark 2086 V. Huttou 1288 Sayers, Ex parte, Belfast Town Council, Inre 2029 V. CoUyer 985, 987, 1953 Saywood B. Cross 539 Scanlan, 7» ?•« X 980 Scantlebury, Ex parte, Guy, In re 200 Scaramanga I'. Marquand 1672,1708 Scarborough r. Scarborough 2044 Scarlett «. Hanson 1642 Scatchard «. Johnson 1054 Scharrer, In re, Tilly, Ex parte 137, 202 Scheyer, ^iB^flrfe, Wontner, 7m ir 1786 Schmidt's Trade-mark, Inre 1848 Schmitz, -KB^flsj'ie, Cohen, Tk re 108 Schneider ». Duncan 722 Schoaeld V. Hincks 123, 1090, 1107 «. Solomon 1156 Scholes, ire ;•. Kitchen 46,1584 Sion College, In re, London (Mayor) Ex parte 1130 Sissling, In, re, Fenton, Ex parte 151 Sitwell, Ex parte, Drury Lowe's Marriage Settlement, In re 1574 Skinner v. City of London Marine Insur- ance Corporation 390, 603 V. Skinner 980 D. Weguelin 1526 Skipper I!. Skipper, Palmer, Inre 1472 Skipwith ■;;. Great Western Ey 287 Slack V. Parker 1328 Slater i;. Burnley (Mayor) 1969 ! V. Slater 1429,1745 Slattery v. Ball, Ball, Inre 2047 «. Naylor 281, 319 Sly v. Blake, Johnson, In re 802, 1145 Small, Ex parte. Small, In re 182 V. Hedgely, Hedgely, In re 793, 929 ■D.Smith 278 Smalley, In re, Smalley i). Smalley 2065 Smallpage and Brandon's Case ...220, 421, 1037 Smalpage t-. Tonge 1412 Smart, In goods of 1994 Smeed, /« re, Archer v. Prall 972 Smethurst«. Hastings 1875, 1958 Smiles «. Crooke 1565 Smith, Ex parte, Hepburn, Xm re 145, 1138 Ex parte. Homer District Con- solidated Gold Mines, /» re 382 iSr ^arfe, Kells Union, /« »'e 1125 Ex parte, Knight, Inre 152 Ex parte, Staniar, In re 171 Inre 1761 In re. Brown, Ex parte ...71, 94, 152, 613 7?i ?■«, Chapman 1-. Wood 938 In re. Day v. Bonaini 1949 In re, Edwards, Ex parte 49, 142, 193 In re. Fox, Ex parte 95, 140 /» re, Hannington «. True 2112 /» re. Hooper D. Smith 31 J» re. Lord D. Hay ward 2025 J7( re, Rigg «. Hughes 4.3,2015,2016 7» re, Smith V. Went 654 and Stott, J7i re 1944 I). Acock : 1108 r. Harham 1377 ■!). Buohan 1508 V. Butler 1071, 1863 V. Carter 769,1456 i;. Chadwick 348,821 v. Critchfield 1039,1042 «. Cropper 734, 1346, 1351 1). Cuninghame 2082 v. Darlow 25,1043,1044 v. Dart 1475,1665 v. Davies 30,1268,1451 -v. Drummond 1664 v. Edwards 1422, 1782 V. Gill, Gill, In re 148T, 1910, 1918 V. Gordon 3 r. Hargrove 1473 TABLE OF CASES. 49 Smith c. Hunt 833 ■«. Jobson 2023 V. Land and House Property Cor- poration 39, 824, 1934 r. Maclure 1238 V. Manchester (Duke) 357 «. Martin, Martin, J« re 2047 V. Midland Railway 290 : 11. Millidge, Humphries, In ir 2024 u Olding 1271 v. Pearman 1273 •». Sibthorpe, Jackson, In re ...1236, 1821 ■». Smith 891,908,1207 ■». Spence, Wheatley, In re 703, 923 ■». Tregarthen 602,1671 «. Went, Smith, J» re 654 ■». Whitlock 927 'B.Wills 533 Smith's Estate, In re, Clements v. Ward. . .303, 940, 1808, 1992 Smithwick «. Hayden 2082 Smyth, In re 1903 Smythe 4>. Smythe 4.57, 900, 1491 Snell V. Heighton 230, 1583 Snelling v. Pulling 523,544 Sneyd, J» re, Fewings, -Etejparte 188,1023, 1061, 1279 Snowt'. Hill 835 V. Whitehead 1953, 1973 Soanes, Ex parte, Walker, In re 197, 203 Soci6t6 Anonyme des Manufactures de Glaces v. Tilghman's Patent Sand Blast Co 1352, 1832 Frangaise des Asphaltes v. FarreU 631 G6n6rale de Paris u. Dreyfus 1411 V. Geen 176 ■!), Tramways Union Co 1308 1-. Walker 397 Solicitor, Inre 1493, 1783 In re, Dudley, Ex parte 1493 to the Treasury v. White 759 Solis,The 1722 Solomon «. Davis 221 Solway, The 743,1725 Somerset (Duke), Jra re, Thynne v. St. Maur 941, 981, 2116 — •!). Hart 1054 Somerville, In re, Downes v. Somerville ... 42 «. Schembri 335,1831 Sonnenschein v. Barnard 540 Soper V. Arnold 1951 Souch V. Cowley, Cowley, In re 2108, 2128 Soutar's Policy Trust, Inre 920, 1001 South City Market Co., In re, Bergin, Ex parte 1126 Dublin Union v. Jones 526, 1071 Durham Brewery Co., J?i re 383 —. — London Fish Market Co., J» r« 411 South Shropshire Election, J» re 720 Staffordshire Waterworks Co. v. Mason 1961 StafEordshire Waterworks Co. v. Stone 1070 Southend Waterworks Co. v. Howard 1967 Southampton Guardians v. Bell 1368, 1754 Southport Banking Co., In re, Fisher's case, Sherrington's case 4 52 Banking Co. v. Thompson, 1239 Spackman v. Plumstead Board of Works ... 1210 Spamer, Ex parte, Voght, In re 151 Spearman, The 1690 Spedding •!). Fitzpatriok ...; 1438 Speer, ira re 1844 Speers «. Daggers 561,1040 Speight, In re. Brooks, Ex pai-te 208 ?j. Gaunt 1889 Speller v. Bristol Steam Navigation Co. ..; 1460, 1461 Spencer, J?j re, Hart i;. M anston 2016 J?i re, Thomas u. Spencer 9S8 B. Ancoats Vale Rubber Co 38 1). Brighouse, Williams, Jre re ... 2046, 2122 Spencer's Trade-mark, 2?i re 1843 Will, /» re 2020,2092 Spencer-Bell to the London and South Western By 1023,1124 Spero Expecto, The 1723 Spettigue's Trusts, In re 536 Spittall'i). Brook 709 Squire "!). Arnison 800 Stafiord i>. Stafford, Price, Inre 939, 1992 StafEqrd's Charity, Jra re 1131 Staines, ire re, Staines ■!). Staines 1488 Stainton, In re. Board of Trade, Ex parte . 202 Stamford (Earl), In re, Savage v. Payne .. 1427 Stamford's (Lord) Estate, Inre 1637 Standing v. Bowriug 13, 388 Stanford, Ex pa/rte. Barber, In re 237, 238, 240 I'. Roberts 1748,1763 1). Stanford 2045 Stanger, /» re, Geisel, Ex pa/rte 98,118 Stanhope -w. Stanhope 1,896 Staniar, In re, Smith, Ex parte 171 ?;. Evans 1490,1744,1781,1897 Stanmore, The , 1688 Stanton i;. Lambert, Lambert, J» re 913, 1577, 2120 Star of Persia, the 1711 Stedman, In re, Coombe ®. Vincent '. 1322 ■ ■!;. Dunster, Hartley, J» re 2079 Bt&edi^ Ex parte, T)a,j, Inre 208 Steedman «. Hakin 41,1494 Steele, In re. Gold v. Brennan 1903 «. Sutton Gas Co 364 Stein ■!). Cope 1515 Stenning' Trusts, J» re 1901 so TABLE OF CASES. Stenson, In re, Merriman, Ha; parte 151 Stephen v. Cunningham, Hamlet, Tit re ... 2047 Stephens, In re, Jones, Hm parte 203 1). Harris 1678 V. London and South Western Ry 294 (i. Stephens 952 Stephenson, Ej: parte, Newtownards Gas Co., I7i re 430 A re, OfSoial Receiver, & parte 143 V. Stephenson 1997 SteTfens, U(e parte, Whicher, In re 137 I7ire 1820 «. Barnet Gas and Water Co 1966 1). Biller 1526 D. Bishop 701,1571 r. Great Western Ry 290 V. Metropolitan District Ry. 544, 1514 r. Thompson, Thompson, In re ... 942, 1443 Steward v. North Metropolitan Tramways Co 1.502 Stewart, Hx parte, Rjley, In re 168 I'. Fletcher 937 t: Merchant Marine Insurance Co. 1015 r. West Derby Burial Board 698 Stewartstown Loan Co. v. Daly 1423 Stimpson ■!). Wood 1302 Stock r. Inglis 1009,1581 Stocken, In re, Jones v. Hawkins 801 Stockton, In re, Gibson, Hx parte 203 Stoer, In re 760,884 Stogdon, In re, Baker, Ex parte 1757 Stokes v. Stokes 551 Stolworthy ■». Powell 548 Stone, In re, Nicholson, Ex parte 85, 608 V. Att.- Gen., Sutton, Jm re 303, 2068 I). Smith 1473,1800 Stone's Trusts, in. re 1325 Stoneham v. Ocean, Eailway, and General 1, Accident Insurance Co 996 Stonori). Fowle 608 Stonor's Trusts, i» re 946 Storer, ijj TO 1777 Storey i>. Storey 893 Stormcock, The 1694,1714 Stotesbury ■». St. Giles, Camberwell 1220 Stott r. Fairlamb 216 r. Milne 1895 Strand, In re. Board of Trade, Ex parte . . . 200 Strangways, In re, Hicldey v. Strangways 1622 Strathmore (Earl), Ex parte, Riddell, In re 109 V. Vane, Bowes, In re 78, 787 Stratton, In re, Salting, Ex parte 146 Strauss v. County Hotel and Wine Co. 993, 1294 Strawbridge, Ex parts, Hickman, In re ... 94, 175, 176 Streatham Estates Co. v. Public Works Commissioners 1123 Street u. Crump 1509 «. Union Bank of Spain and Eng- land 6,991, 1829 Stribling«. Halse 706 Stride, J» re, Martin, Ex parte 114 ■». Swansea Tin Plate Co 1860 Strickland 1J. Symons 1892 V. Weldon 4, 316, 476, 1398 Striken. ColUns 1184 Strong, In re 34, 610, 1741, 1742 Stroud i;. Austin 601 Strugnell r. Strugnell 983,1322 Stuart, In goods of 1998 1'. Balkis Co 760,761 i;. Wrey, Wrey, i/J re 2044 Stubbs I). Hilditch 1972 Stuchbery 1). Spencer 1046,1560 Studdert 1). Grosvenor 357 Studds ». Watson 471 Stumore 1). Breen 1652,1659 Sturgis (British) Motor Power Syndicate, litre 415 Styles V. New York Life Insurance Co. ... 1004, 1568 Suckling «. Gabb 1447 Sudeley's (Lord) Settled Estates, Jb re ... 1635 Suffield and Watts, In re, Brown, Ex parte 85, 1396, 1790 Suffolk D. Lawrence 1486,1900 Sugg 1). Bray 751 Sullivan B. O'Connor 1298 Sully, Ex parte, Wallis, In re 124 Sully's case 403,1798 Sultzberger, Ex parte, Sultzberger, la re 183 Summers v. Moorhouse 509 Summerville, Jre )•« 1161 Sunderland 32nd Universal Building Society, In re, Jackson. Ex parte 278 Sunniside, The 1709 Suse, In re, Dever, Ex parte 128, 130, 135, 467, 921, 995, 1003, 1035 Sutcliffe «. Wood 1424 Sutherland, The 1679 Sutton, J?s re, Stone r. Att.-Gen 303,2068 (Parish of) to Church 314,341 Svensdeui). Wallace 534, 1016, 1716 Swabey ^). Dovey 657 Swain «. Ayres 1103 1). Follows 560 Swansea Co-operative Building Society v. Davies 553 Sweet V. Combley 1271 Swift 1;. Pannell 125, 258 Swinburn v. Ainslie, Ainslie, In re ... 790, 1824 «. Milburn 1089 Swinburne, In re, Swinburne v. Pitt 2099, 2110 Swindell v. Bnlkeley 800 TABLE OF CASES. 51 Swire, In re, Mellon). Swire 1481 Syer i'. Gladstone 2110 Sykes, In re, Sykes 11. Sykes 1772 V. Sacerdoti 1442 SymesD. Appelbe 1997 Symington 1). Footman 1831 Symonds v. City Bank 1503 D. Hallett 941 V. Incorporated Law Society 1793 SymonB, 7?nv, Betts r. Betts 1400 . «. Leaker 672 T. T. V. T 1029 Tabor a Prentice 1997 Tacon v. National Standard Investment Co. 1507 Tagartr. Marcus 1500, 1514 Tailby ■!;. Official Receiver 242 Tait «. Mitchell 1643 Talbott, In re. King v. Chick 808 TaUerman, In re, Rooney, Ex parte 151 Tambraoherry Estates Co., In re 379 Tamvaco ■!). Timothy 287 Tandy, In re, Tandy v. Tandy 2027 Tanner, Inre 12, 970 r. Carter 709,1923 V. Scrivener 688 Taplin t'. Taplin 897,1474 Tapling V. Weston 1097 Tarleton v. Bruton, Roberts, In re 2049 Tarn v. Commercial Banking Co. of Sydney 798, 1436 r. Turner 1279 Tarratt, 7«re 1163 Taxtt, Ex parte 894 Tasmania, The 1694,1713,1714 Tate V. Hyslop 1013, 1310 Tattersall «. National Steamship Co.... 288, 1662 latum V. Evans 1534 Taurine Company, Inre 454 Tay D. Bignell 666 Taylor, Ex parte, Goldsmid, Inre ... 168, 1887 Ex parte, Lacey, Inre 106 . In re, Board of Trade, Ex parte ... 89 In re. Cloak v. Hammond ... 2020, 2033 In re, Vjei, Ex parte 126 In re, lUsley v. Randall 2127 Are, Martin 0. Freeman ... 309,2082, 2113 jft re, Official Receiver, .Efejjarte... 89 ire re, Taylor «. Ley 2037 Jw re, Taylor «. Taylor 1999 In re, "Whitby v. Highton 1992 «. Bank of New South Wales 1533 V. Blakelook 1888, 1920 v. Ley, Taylor, In re 2037 Taylor v. Mostyn 1226, 1264, 1269, 1270 — ■ — V. Neate 1337 V. Pendleton Overseers 1369 V. Pilseu Joel and General Electric Light Co 406 v. Poncia 1627 ■!). Smetten 837,1157 - — . V. Taylor, Taylor, Inre 1999 V. Timson 694 Teale, In re, Teale u Teale 2043 Tearle «. Bdols 317 Tempest 17. Camoys (Lord) 1917 Temples. Thring 808,880,1820 Bar, The 1468,1724 Tench's Trusts, /?i re 925 Tench u. Bykyn 1460 Tennant «. Cross 2016 ■<;. Howatson 337 Tennent, In re, Grimwade, Ex parte... 109, 443 v. Welch 935 Terry and White, i>i re 1929 i;. Dubois 1457 Tetley D. Griffith 930,1507 Teuliere V. St. Mary Abbott's Vestry 1214 Tew V. Newbold-on-Avon District School Board 265 Thackrah, In re, Hughes, Ex parte 127 Thackwray and Young, In re 1134, 1938 Thames Conservators v. Inland Revenue Commissioners 1559 and Mersey Marine Insurance Co. «. Hamilton 1012 Thanemore Steamship v. Thompson 1418 Tharel's Trusts, Inre 2122 Thatcher's Trusts, In re 972 Theodore H. Rand, The 1682 Thetford, The 1693 Theys, Ex parte, Milan Tramways Co., In re 63,426,1500 Thomas, J?a! ^arfe. Trotter, Jm re 119,596 In re. Commissioners of Woods and Forests, Jfe i^drfe 119,596 —. — In re. Comptroller, Ex parte 93 Jra re, Poppleton, .Ez! ^arie 358 . /rare, Thomas 11. Howell ... 493,919, 1927 In re, Ystradfodwg Local Board, Exparte 140,873 ■0. Exeter Flying Post Co 1474 V. Hamilton (Duchess Dowager) 1413 V. Howell, Thomas, In re ... 493, 919, 1927 ■<;. Kelly 26,241,1043 I). Mirehouse 1093 V. Owen 672 ■». Peek 546 V. Quartermaine 1197 V. Sherwood 322 ■!;. Spencer, Spencer, 7» re 93? 4 C! 52 TABLE OF CASES. Thomas V. Turner 504 Thomas Allen, The 1711 Thompson, In re 1751,1755 In re, Maohell v. Newman 2031 In re, Stevens v. Thompson 942, 144S In goods of 744,2015 and Curzon, /)j'?'e 925 to Curzon, In re 1932,2054 V. Eoyal Mail Steam Packet Co. 287 ■K.Thompson 899 D.Wright 1040 Thompson's Will, In re 1683, 2075 Thomson v. Weems 995 Thorman -!). Burt 1659, 1660 Thomber, Um parte, Barlow, In re 173 Thorniley, In re, Woolley v. Thorniley 1466 Thornton «. Thornton 1481 Thorp uDakin 178,737 Thorpes. Cregeen 245 Three Towns Banking Co. v. Maddever, Maddever, 7?i re 827,1073 Thiossel «. Marsh 235 Thrussell i;. Handyside 1294 Thurston-, In re, Thurston v. Evans 2103 Thwaites v. Wilding 1096 Thyatira, The 729, 1699, 1727, 1728 Thynne v. St. Maur, Somerset (Duke), In re 941, 981, 2116 Tickle, In re, Leathersellers' Co., -Efe parte 142, 193, 1101 Tidswell, Ex parte, Tidswell, In re 144 Tighe V. Featherstonhaugh 2065 Tillet, In re, Fields. Lydall 806, 1498 Tillett «. Nixon 1268, 1454 Tilly, Ex parte, Scharrer, In re 137, 202 Timson «. Wilson 1468 Tinnuchi v. Smart 611 Tippett, Ex parte, Tippett, In re 82 and Newbould, In re 987, 1940 Tischler v. Apthorpe 1569 Tisdall ?;. Richardson 583 Titian Steamship Co., In re 417 Tiverton and North Devon Ky. ■». Loosemore 1116 Tod-Heatley D. Benham 1087 Todd, Ex parte, Ashcroft, In re 160, 1807, 1808 u. Robinson 876, 877, 1362 Tolhausen v. Davies 1298 Tolman v. Score, Score, In re 2057, 2064 ToUemache, In re, Anderson, Ex parte 149, 747 In re, 'Borihz.'m, Ex parte 149 Inre,'Edyifs,T:As, Ex parte 149,745 In re, Eevell, Ex parte 149, 746 Tomkinson ■!). South-Eastem Ey 406,1506 Tomlin Patent Horse Shoe Co., /w »•« 412 Tomlinson «). Ashworth 1187 1). Gilby 398,2010 D. Land and Finance Corporation 1042 Tompson v. Dashwood 633 Tone V, Preston 685 Tonsley «. HefEer 1468 Toogood's Trusts, In re 1430, 1495 Topham I!. Booth 1151 V. Greenside Glazed Fire Briok Co. 227, 369 Topley 1). Corsbie 253 Toppin ®. Buckerfield 548 Torlshr. Clark 704,709 Torquay Market Co. i). Burridge 1183 Tosh «. North British Building Society ... 279 Totness TTnion v. Cardiff Union 1385 Tottenham «. Swansea Zinc Ore Co. 423, 820, 1239 Toulmin D. Millar 22, 1476, 1521 Toutt's Wni, In re, Martyn, In re 1908 Tows.t:&, l7ire,'ilLoss, Ex parte , 165 Tower Ward Schools Trustees, Ex parte, Finnis to Forbes 314 Towgood •!). Pine 1840 Townley, In re, Townley v. Townley 2068 Townsend, In re, Clark or Parsons, Ex parte 225,237 In re, Townsend -c. Townsend 2004, 2052 Towse II. Loveridge 1461 Tozier ®. Hawkins 1413,1415 TrafEord v. Blanc, Trufort, In re 1026, 1034, 1039, 1502 II. Maconoohle, Moore, J?i TO ; 2078 Tranter «. Lancashire Justices 1060 Treadwell v. London and South-Western Ey 1112 Tredegar Iron and Coal Co. o. Gielgud 601 Treherne ■». Dale 67 Trench, In re, Brandon, Ex parte 97 Trenohard's Will, In re, Hume, In re 1919 Tress v. Tress 889 Trevelyan «. Trevelyan 1945 Trevor v. Whitworth 384 Tricks, 7m re, Charles, ^a! jparte 205 Trinder u. Raynor 234 Tritton V. Bankajt 1087, 1459, 1462 Trott r. Buchanan 794,2117 Trotter, In re, Thomas, Ex parte 119, 596 Troward v. Troward 896 Trower v. Law Life Assurance Society 1467 Trufort, In re, TrafEord v. Blanc ... 1026, 1084, 1039, 1502 Trustee, Ex parte. Cox, In re 139 Ex paHe, liownAw, In re 159,194,983 Ex paHe, Walsh, In re 99 Ex paHe, WhitaksT, In re ... 119,194 Ex pa7ie, YaTpp, In re 196 Trustees and Agency Co. v. Short 1149 Trye v. Sullivan, Young, In re 989, 1992, 2085 Tryon v. National Provident Institution ... 1404 Tuck 11. Priester 501 Tucker, In re, Bowchier v. Gordon 2042 /» re, Emanuel D. Parfitt 925 TABLE OF CASES. S3 Tucker «. Bennett 624,963 «. Cotterell 528,1398 ■». CoUinaon 528,1398 1). Linger 1078 Tuckett's Trusts, Inre 1876 Tudball «. Medlioott 1891,2055 Tuer's Will, Inre 1163 Tufduell v. Nicholls 1272 Tuff, 7?j re, Nottingham, ^aj^arie 144 Tufnell & Ponsonby's case 391 Tugwell, Tare 492,1125,1158 Take v. Gilbert, Martin, In re 2040 Tunbridge Highway Board v. Sevenoaks Highway Board 1981 Tunnel Mining Co., 7ra re. Pool's case 446 TunuiclifEe I'. Birkdale Overseers 1373 Turcan, Inre 947, 998 Turgot, The 1654, 1655 TumbuUi!. Forman 926 Turner, In re, Glenister v. Harding . . . 744, 748 In re, Turner v. Turner 11, 813 In goods of 134,2011 1). Culpan 236,253 «. Hellard, Harrison, Zw re 2017 ■B.Hockey 1589 V. Nicholson, Pickaid, In re 1162, 1323 D.Thompson 1029 «. Turner, Turner, Jra ?'e 11,813 Turner's Settled Estates, J?J re 2100 Tumour, In goods of 2004 Tniqnand, Ex parte, Parkers, In re ... 121, 126, 232 ■». Board of Trade 89 Tutheri;. Caralampi 630,1422 Tweedie and Miles, in re 1882 Tweedy, iJ8 re '. 1910 TyarsttAlsop 1739 Tyler v. London, and South Western By 594, 1365, 1865 Tyne Boiler Works Co. v. Longbenton Over- seers 1371 — — n.Tynemouth Union 1371 Tynemouth Union v. Backworth Overseers 1379 U. UUee, J«re 979 Ulysses, Cargo, Bx 1706 Undaunted, The 1713 Underbank Mills Cotton Spinning and Manufacturiiig Co., J» re 367 Underhay 1). Bead 1262 Underbill, In re, Budden, Hx parte 198 Ulster Land Co., Inre 442 . Permanent Building Society v. Glenton 272, 1085, 12i4 Union Bank of London v. Kent 1249, 1262 ■!). Munster ... 614, 1799 of Scotland v. National Bank of Scotland 1257,1605 Union Electrical Power and Light Co. v. Electrical Storage Co 1355 Steamship Co. of New Zealand v. Melbourne Harbour Trust 8, 321, 1805, 1810 United Horse-Shoe and Nail Co. v. Stewart 1349 Kingdom Mutual Steamship Assur- ance Association v. Nevill 1020 Land Co. v. Tottenham Local Board 865, 1975 Service, The 464,1713 Stock Exchange, i?j re 415 In re, Philp, Ex parte 416 Telephone Co. v. Bassano 85, 189 ■U.Dale ... 66,988,1344 u. Donohoe 1478 V. London and Globe~ Telephone & Main- tenance Co 1344 u. Sharpies 1343 ■ii. Walker 1349 Upton V. Brown 1615 Urquhart v. Butterfield 211, 599, 743, 1030 Utting ij. Berney 1171 Uzielli V. Boston Marine Insurance Co. ... 1017 V. Valdez' Trusts, Jra re 2030 Vallance, In re, Limehouse Board of Works, Ex parte 748 In re, Vallance v. Blagden 483 v. Falle 5,1361, 1657,1811 Van Duzer's Trade-mark, In re 1839, 1842 Vanderhaege, In re, Izard, Ex parte ... 152, 206 Vardon's Trusts, In re 30, 703, 961, 1901 Vaucher v. Solicitor to the Treasury, Grove, In re 1026, 1031 Vaughan, Ex parte, Eiddeough, Z»7'e...l36, 165 In re, Vaughan v. Thomas 303 Vavasour, i» re 1158 Veale v. Automatic Boiler Feeder Co 1408 Venkata Narasimha Kow v. Court of Wards 340 Vera Cruz, The 39, 617, 1288, 1703, 1730 Y^T&i, Ex parte, Hinks, Inre 142 Verney v. Thomas 1421 Vernon i;. Croft 1429 V. Hallam 486, 844 Ewens, & Co., In re 746, 1250, 1872 Vibert r. Eastern Telegraph Go....... 1187 4 C 2 54 TABLE OF CASES. Vioat, Inre 1907 Vickers, Ex parte, British Burmah Lead Co., Inre 344 In re, Vickers v. Vickers 2090 Victor Covacevich, The 1449,1724 Victoria, The 1702,1720 Victorian Eailway Commissioners v. Coultas 600, 1303 Vincent 1). Vincent 473 Viudobala, The 1649 Viney i;. Bignold 50, 1006 1). Norwich Union 50, 1006 Vint V. Hudspeth 27, 142, 188, 915, 1476 Vivian & Co., In re,West African Telegraph Co., Inre 379 Vivienne, The 1651 Voght, In re, Spamer, Ex parte 151 Voinet I). Barrett 1039 Vollum V. Eevett, Youngs, In re ...29, 804, 1480 Von Brockdorfeu Malcolm 2095, 2102 Vowles, In re, O'Donoghue v. Vowles 812 Vysei). Brown 69 W. W. A. Scholten,The 1410, 1721 Wade«. Keefe 982,1743 II. WUson, Bentley, Inre 1621 , 2062 Wadham «. North-Eastern Ky 1119 Wadsworth, Jra ?-e, Rhodes i;. Sugden ... 1788, 1789, 1790 Wagg V. Shand, Johnson, In re 805 WagetafEi). Clinton 1089 i;. Shortliorn Dairy Co 601 Wait, /» re. Workman «. Petgi-ave 2096 Waitei). Morland 906,921 Wake V. Sheffield (Mayor) 870 Wakefield 1). MafEet 958 Wakeham, In re, Gliddon, Ex parte 146 Wakelin v. London and South-Western Ey 1289 Walcott B. Lyons 1405,1875 Wales 1). Thomas 1229 Walford, In re, Walford v. Walford 1261, 1590 Walhampton Estate, In re 1248, 1613 Walkden's Aerated Waters Co.'s Applica- tion, 7ra r« 1846 Walker, Ex parte, Hoxton Election, In re 719 In re. Barter, Ex parte 134, 263 J» re, Gould or Goold, .Ec parte. . . 123, 192, 193, 1083, 1101, 1103 J» ?'c, Jackson, J» re 754,883 In re, Nickoll, Ex parte 98, 206 J?i re, Sharp, .®» ^arte 84 Inre,^oa.nes, Ex parte 197,203 In re, Walker v. Walker 2084 — -r- and Beokenham Local Board, In re 874 Walker and Hacking, J» re 385 and Hughes' Contract, Jw re 1912 v. Appach, Hobson, In re... 1819, 2125 , - i;. Bradford Old Bank 62 D.Clarke 1356 1). Dodds 562 V. Gammage, Natt, In re 795 V. General Mutual Investment Building Society 276 1). Hirsch 1324 D. James 1^^^ V. London and Provincial Insu- rance Co 1007 ■». MidlandEy 993,1293 ■». Southall 1237 V. Walker, Walker, Inre 2084 Wall, Inre 968 ■ V. Stanwick 970 Wallace's case 350 Wallace, Ex parte, Wallace, In re ... 112, 1391 In re, Campbell, Ex parte ... 169, 173 In re, Richards or Wallace, Etc parte 112,1391 Wallasey Local Board v. Gracey 864 WaUis, J?J re. Sully, -Eb ^arte 124 «. WalHs 982,2029 Walls r. Thomas 1229 Walmeley v. Mundy, Goodenough, Ex parte 57 Walrond v. Goldmaun 258 Walsh, J» re 976 • Jw re, Trustee, ^K ^arte 99 ■ ■!). Blayney 2038 ■!). Whiteley 1195 Walter ■!). Bmmott 614,1828 'W.James 1473 I. Parrott, Parrott, J» re 1613,2069 Walters, In re, Moore i>. Bemrose 525 Walton V. Edge 280 Wandsworth Board of Works v. United Telephone Co. 1215, 1804, 1816 District Local Board v. Post- master-General 1816 Wanklyn «. Wilson 1425 Warburg, Ex paHe, Whalley, In re ... 102, 204 Ward's Estate, Inre 1126 Ward, Ex parte, Gamlen, Inre 117 Inre 1754,1756 «. Dudley (Countess) 1228 t'. Holmes, Dean, J?j re 1769 ■!). Buckle 2013 ■D. Royal Exchange Shipping Co. ... 365 U.Sharp 1452,1504,1739 — — «. Sheffield (Mayor) 514,866 '!'. Wood, Wood, i>j re 2020 Waring v. Pearman 54, 531 v. Scotland 1795 Warkworth, The 1701, 1804 Warne D. Lawrence 504 TABLE OF CASES. ss Warne i;. Seebohm 503 Warner D. Moir, Moir, J» re 2075 Warren, Ex parte, Holland, 1% re 157 ire re, Weedon «. Warren 780 Warren's Settlement, In re 932 Trusts, In.re 959, 1617, 2101 Washburn and Moen Manufacturing Co. v. Patterson 35 Waterhouse ■». Gilbert 25,1044 V. Worsnop 1167 Waterman v. Ayres 1831, 1838, 1839 Waterman's Trade-mark, In re ... 1831, 1838, 1839 Watkin 11. Newoomen 799 'WaMkms, Ex parte, WaXkius, lure 202 Ex parte, Wilson, In re 198 In re, Watkins, Ex parte 202 1!. Evans 238,248 Watkinson, Ex parte, Wilson, In re 198 Watson, Ex parte, Argle Coal and Cannell CQ.,In re 450 Ex parte, Sheffield Building So- ciety, In, re 269, 734 Inre 790,1158,1785,1902 i» re, Carlton r. Carlton 1993 In re, Oiara, Ex parte 110 In re, 'Philli-ps, Ex parte 30,786 II. Black 711 v. Blakeney, Hendry, In re 302 ■!?. Strickland 238,253 i-. Young 2039,2081 Watson's Trusts, In re 2035 Watts, In re, Comford v. Elliott... 301, 302, 616 Waye «. Thompson 851 Wayman v. Monk, Monk, In re 693 Weaver, In re, Higgs v. Weaver . . .'. 209 Webb, Ex paHe, Webb, Inre 175, 202 In goods of 2008 V. Jonas 1872 r. Kerr 1509 ■». Shaw 43,1044 ■ U.Smith 62,1589 Webber, Ex parte, Webber, In re 133 Weblin -w. Ballard 1197,1198 Webster, In re, Derby Union v. Sharratt 1165, 1387 In re, Foster, Ex parte 87, 174 i;. Armstrong 732 ■». Bond 289 •- — i;. Friedeberg 1475 ^^ . 1). Myer 1496 — — «. Patteson 1275 ■». Kiokards, Hobsou, /« re 924 «. Southey 310,1389 Webster's Estate, In re, Wigden v. Mello 2049 Weedon -!). Warren, Warren, J» re 780 Weekes's Case 401 Weekes 1). King 861 Weguelin 'K. Wyait 1565 Weir, In re, Hollingworth v. Willing 628, 1309 Welch V. Channell, Evans, In re 975,1893 I'. Gardner 2006 V. London and North Western Ey. 287 V. National Cycle Works Co 1274 V. Peterborough (Bishop) 689 Weld, J» re 1159 Weldoni). De Bathe 631,941 I). Gounod 769,1483 ■!). Maples 34 D. Neal 594,846,940, 1502 «. Riviere 940 V. Weldon 889, 607 ■«. Winslow 940 Wellcome's Trade-mark, J?s re 1835 Wellerr. Stone 499 Wellfield (Owners) v. Adamson 1712 Wells V. Masons' Company of London 515 B. Stanforth 714 Wemyss, Ex parte, Wemyss, In re 114 Wenlock (Baroness) v. River Dee Co. 57, 342, 365, 366, 669 Wenmoth's Estate, In re, Wenmoth v. Wenmoth 2039 Wennhakr, Morgan 636,1189 Wentworth v. Humphrey 318 Werle v. Colquhoun 1570 Wemher, Ex parte, Elimberley North Block Diamond Mining Co., In re 391 Werra, The 1709 West, Ex parte. Mount Morgan (West) Gold Mine, i» re '.... .3^'^ West «. Turner, Kelly's Settlemen*"^ .t« re 961 West African Telegraph Co., In re, Vivian & Co,, /» re 379 Bromwich School Board v. West Bromwich Overseers 1374 Cannock Colliery Co., Ex parte, Pearson, In re 156 Cumberland Iron and Steel Co., In re 380 Devon Great Consols Mine, In re 38, 211, 440, 563 Lancashire Ry. 0. Iddon 1545 London Commercial Bank, In re 430, 595 V. Kit- son 218, 358, 1519 lianoe Permanent Building Society 1260 Middlesex Waterworks Co. v. Coleman 1966 — - Norfolk Farmers' Manure Co, v. Archdale 1608 Riding JJ. ■!). Reg 1982 Westacott «. Smalley 220 56 'TABLE OF CASES. Westbrook ^. Field 16 Westbury-on-Severn Sanitary Authority v. Meredith 6,1397 Western Suburban, &c., Permanent Benefit Society V. Martin 276 Westfield and Metropolitan Ry. Cos., In re 1123 D. Metropolitan District Ey. ...1123 Westhead D. Eiley 770 Westminster Fire Office v. Glasgow Provi- dent Investment Society 1007 Weston D. Neal, Neal, J« »•« 1434 Westropp's Divorce Bill 905 Westropp «. BUigott 1059 Wexford, The 1726 Whaley v. Busfield, Busfield, In re ... 1484, 1809 Whalley, J» re, Warburg, ^2! ^orie ... 102,204 V. Lancashire and Yorkshire Ky. 1546, 1973 Wheal BuUer Consols, In re, Jobling, JSa; parte 444 Wheatcrof t r. Matlock Local Board 859 Wheatley, In re, Smith v. Spence 703, 923 V. Silkstone and Haigh Moor Coal Co 372 Wheekerr. Webb 850 Wheeler ii. United Telephone Co 1428 Whelan ■!). Palmer 2100 Whetham v. Davey 1236, 1326 Whicher, In re, Stevens, Ex parte 137 Whickham, The 654 Whinney, ^iB ^arfp, Grant, Z» re 136,174 ■ JEx parte,Sia,nAe.T:s, Inre ... 109,443 Whistler and Richardson, In re 779 Whitaker, In re, Trustee, Ex parte ... 119, 194 In re. Christian v. Whitaker . . . 946 ■('. Derby Urban Sanitary Au- thority 863 Whitby i;. Highton, Taylor, In o-e 1992 White, Ex parte. White, In re 1 81 , 207 Inre 1788 In re. Official Receiver, Ex parte 136, 196 In re. White, Ex parte 1 81 , 207 'O.Baxter 1521 t'. Bywater 849 %\ City of London Brewery Co. ... 1057, 1263 K. Ditchfield 1649 «. Haymen 348 D. McMahon 470 ■!). Milne 558,1044 -B. Neaylon 320 t). Norwood Burial Board 699 D. Peto 1212,1299 ■ r. Eandolf, Gibbes' Settlement, In re 2098 White's Trusts, J?n'e 309 "White Rose" Trade-mark, In re 1844 Whitehall Court, Inre 361 Whitehaven Mutual Insurance Society, Ex parte. Shepherd, In re... 149, 150 Joint Stock Banking Co. v. Reed 373 Whitehead, Ex parte. Whitehead, In re... 132, 474, 917 Inre 21,1741 In re, Whitehead, Ex parte 132, 474, 917 Whitehouse, In re, Whitehouse v. Edwards 12 Whitehouse's Claim, General Horticultural Co.,Inre 70,368 Whiteley, In re, Whiteley v. Learoyd 770, 1454 1). Barley 645,876 e. Learoyd, Whiteley, In re ... 770, 1454 Whitham D. Kershaw 1082 Whiting V. East London Waterworks Co.... 1964 Whitley & Co., In re, Callan, Ex parte . . . 350, 451, 1512 Whittaker, /» « 90 Whitten ■!;. Hanlon 2094 Whittick ■!). Mozley 474 Whittingstall «. Grover 793,1330 Whitton «. Hanlon 1501 Whitwell's Estate, Inre 1321 Whorwood, In re. Ogle v. Sherborne (Lord) 2036 Whyte f. Ahrens 646,1452 r. Tyndall 1079 Wickham, J» rf, Marony r. Taylor 1434 Wicksteed n. Biggs 535, 655 Wigden v. Mello, Webster's Estate, In re... 2049 Wiggeston Hospital and Stephenson, In re 53, 1482 Wight r. Shaw 521 Wigiami). Fryer 1121,1810 Wilcock, Jm re 1629 Wilcoxon, In re, Andrews, Ex parte 145 Wilde, In goods of 2009,2010 V. Walford, Harrald, In re 1787, 1898 Wildy r. Stephenson 1521 Wilkins, Z"« re, Wilkins r. Eotherham... 809, 1579, 2128 V. Birmingham (Mayor) 60 — - iJ.Day 1976 V. Pryer, Kingdon, In re 1995, 2098 V. Rotherham, Wilkins, In re 809, 1579, 2128 Wilkinson, In re, Official Receiver, Ex parte 162 <■. Collyer 1086 t. Jagger 558,831 Wilkinson's Trusts, Inre 2083 Wilks, jEfe^arie ■... 510 «. Bannister ^.i.AJ3, 2049 Willett, In goods of 2009 William Symington, The 1712 Williames, In re, Andrew v. Williames, 787, 1894 Williams. .£■»• ^arif, Williams, /» re 203 TABLE OF CASES. 57 Williams, In re, Daviesr. Williams 1154 . Jm w, Green D. Burgess 796 — ^. In re, Jones v. Williams 82, 210, 1808 ^— =. In re, OfSoial Receiver, Ex parte 197 In re, Pearce, Ex parte 247 In re, Spencer v. Brighouse 2046, 2122 —- — - In re, Williams, Ex parte 203 -~~ V, British Marine Mutual Insu- rance Association 1021 - V. Colonial Bank ...76, 395, 1038, 1305 ». De Boinville 1482 -™ ■», Gorvin, Bichards, /?i ?•« 2055 — ^ — «. Great Western By 17,288 — -^ 1). Jenkins, Price, TJi re 811 ■- D.Jones 542,751,1794 «. Mercier 950 1). Morgan 320 v. Peel Eiver Land Co 642 I). Pounder, Pounder, i» re 2059 •!;. Kamsdale 1438 i;. Shadbolt 221 t). Smith 632 «!. Wallasey Local Board 855 V. Wandsworth Board of Works 1219 «. Ward 521 • 'K.Ware 1429 V. Williams 2062 ■». Wynne 1069 Williams' Claim, Great Eastern Steamship Co., irare 1656 Trusts, Jm re 1904 Williamson v. Burrage 1273 ?). Famell or Farwell 1619 v. North Staffordshire Ry 537 Willis, In re, Kennedy, Etc parte 228 V. Beauchamp (Earl) 1435, 1464 ■». Combe 1642 WUloughby, In re 976 Wills i>. Luff 1268 Willyams ■». Scottish Widows Fund 742 Wilmott r. Freehold House Property Co. 1424, 1442 V. London Celluloid Co 374, 435 Wilson, Jre re 1771,1919 In re, Alexander v. Calder 763, 802 In re, Parker v. Winder 2027 In re, Pennington i). Payne 781 In re, Watkins or Watkinson, Ex parte 198 In re, Wilson «. AlHree 526, 667 and Green, Jre re, 52 •», AUtree, Wilson, In re 527, 667 V. Barnes 311 V. Cond6 D'Eu Ry 51 V. 3oulon 758 1). D.uguid 2026,2103 , r. Faason 1565 ■». Glossop 914 .. r. Kenrick 1619 Wilson V. Knox 2041 D. M'Mains 621 ■». Noble 1508 D.Owens 1297 v. Wilson 758 1). The Xantho 1661 Wilton v. Leeds Forge Valley Co 557 Wimbledon Local Board v. Croydon Sani- tary Authority 861, 987 Winby , Ex parte, Winby , In re 113 Winchilsea (Earl) Policy Trusts, 1% re 1000, 1877 Winder v. Kingston-upon-Hull 1166, 1388, 1861 Windham 11. Sainton 535 Windsor and Annapolis Ry. v. Reg 597 Winfield v. Boothroyd 548, 642, 1809, 1865 WingroTe v. Wingrove 1991 Winn, In re. Reed v. Winn 920 Winslow, In re, Godfrey, Ex parte 136 Winatanley's Settled Estates, In re 1640 Winston, The 1679 Winterbottom, ^iB^fflrte,Winterbottom, In re 103,111 Wise, In re. Brown, Ex parte 88, 208, 209 In re, Croydon County Court Re- gistrar, Expa/rte 88, 208, 209 Inre,tiLeice!:, Ex parte 825 Withall «. Nixon 1274 Withamv. Vane 618,1224,1463 Witt D.Banner 240 Witten, Inre 980 Wittmann v. Oppenheim 519, 1860 Witton, In re, Arnal, Ex parte 120, 121 Woburn Union v. Newport Pagnell Union 863 Wolstenholme, jEtej7arie,Wolstenholme,7« re 99 v. Sheffield Union Banking Co 78 Wolverhampton Banking Co., Ex parte, Campbell, In re ... 167, 168, 206, 484 Tramways Co. v. Great Western Ry 1861 Womersley, In re, Etheridge v. Womersley 806 Wontner, In re, Scheyer, Ex parte 1786 Wood, JE» pflrie, Burden/J?s re 85 Z?t re. Ward -y. Wood 2020 D. Anderston Foundry Co 1410 D. Aylward -. 469 D.Calvert 1763,1771 D. Chandler 713 D. Douglas, Douglas, Inre 724, 1207 V. Durham (Earl) 638, 1498, 1500 —^ D. Lambert 1841, 1857 D.Siloock 265,1795 D. West Ham Gas Co 842 D.Wood 892,901 Wood's Estate, In re, Commissioners of Works and Public Buildings, Ex parte 596, 1130, 1802 Trade-mark, In re 1841, 1857 58 TABLE OF CASES. Woodall, 7« jr 23, 8U Woodgate v. Great Western Ey. .,>. 285 Woodhall, Mxparte 23 JUa; parte, 'WoodhBll, Zn re 107 Woodham, In re, Colider, Ex parte ... 158, 1644 Woodhill V. Sunderland (Mayor) 856 Woodhouse 1). Balfour 2000 V. Spnrgeon 2058 Woodruff V. Brecon and Merthyr Tydvil Ey. 1 543 Woods V. Woods 905 Woodward, Ex parte', Lay, In re 126 ■ In re, Huggins, Ex parte 126 ■«. Goulstone 1999 V. Sansum 1341 Woolhouse, ira r« 1159 Woolley V. Thorniley, Thorniley, In re 1466 Woolstenholme, In re, Foster, Ex parte ... 98 Workman v. Petgrave, Wait, In re 2096 Worthington v. Dublin, Wicklow and Wex- ford Ey 650 «. Gm 1979 Worswiok, In re, Eobson ii. Worswick 647 Wortley v. St. Mary, Islington 1219 Wraggs' Trade-mark, In re 1846, 1850 Wray,/Mre 113, 1743 1'. Kemp 1735 Wrey, ira re, Stuart ■«. Wrey 2044 Wright's Trusts, In o-e 932, 1639 Wright and Marshall, In re 1611,1883 t-. Harris 1047 i).HettoniDowns Co-operative Society 1864 0. Horton 367 V. Ingle 697, 1218 V. Midland Ey 1288, 1290 6. Eobotham 630 V. Sanderson, Sanderson, In re .[.... 39, 2001 «. Wallasey Local Board 697 1). Watson 153 i;. Woods, Harvey, im re 809 Wybrants v. MafEett 2113 Wycombe Union v. Marylebone Guardians 1381 Wyggeston Hospital and Stephenson, In re 53, 1482 Wylsono). Dunn 470, 1799 Wyman r. Knight 2137 Wy thes. Ex parte, Middlesborough Building Society, 7?j re 274 X., In re . 1776 Yan-Tean, The 1707 Yapp, In re, Trustee, Ex parte 196 Yarmouth v. France 1190, 1195, 1198, 1200 Exchange Bank v. Blethen ...618, 736 Yates, In re, Batcheldor or Batcjielor o. Yates 227, 1258 : and Kellett's Patent, In re 1351 i 1!. Eeg 639^ Yeilding and Westbrook, In re 1939* Yelland D. Winter 1564,, Yeo V. Dawe 216, 155?" Yeoland Consols, In re 414, 45^ York, In re, Atkinson v. Powell 21i _ Yorkshire Banking Co. v. MuUan 126-^; Tannery v. Eglington Chemical Co 1412, 14; i; Young, Ex parte, Young, In re 1 1^ — - In re, Trye v. Sullivan ... 939, 1992, 2C '- In re, Young, Ex parte l.j;.. and Harston, i» re 1940, 19i.«^ V. Beattie 14S V. HoUoway, HoUoway, In re 649, 65; \ 2011* r. Schuler 752 Younger. Cocker 983, 1267'^ Youngs, In re, Doggett v. Eevett 29, 804, 1434, 1480 In re, Vollum v. Eevett... 29, 804, 1480 Yourri, The 1690 Ystradfodwg Local Board, Ex parte, Thomas, In re 140, 873 A Zadok, The 1685,168^ Zappert, Zk re 120 Zerfass, Ex parte, Sandwell, In re 121 Zeus, The 1720 1 Zoe, The 1701 Zoedone Co., In re 418 i THE END. BRADBURV, AQNKW, & CO., PRINTERS, WHTTEFRIAH3^